Bade-Brown v. Labor Commission ( 2016 )

2016 UT App 65THE UTAH COURT OF APPEALS
CHARLOTTE LYNN BADE-BROWN,
Petitioner,
v.
LABOR COMMISSION, LOW BOOK SALES AND LEASING,
AND MID CENTURY INSURANCE COMPANY,
Respondents.
Memorandum Decision
No. 20141052-CA
Filed April 7, 2016
Original Proceeding in this Court
Stony Olsen, Attorney for Petitioner
Jaceson R. Maughan, Attorney for Respondent
Labor Commission
Brad J. Miller and J. Tyler Martin, Attorneys
for Respondents Low Book Sales and Leasing and
Mid Century Insurance Company
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY
concurred.
ROTH, Judge:
¶1 Charlotte Lynn Bade-Brown (Petitioner) seeks review of
the Labor Commission’s (the Commission) order partially
denying her claim for benefits under Utah’s Workers’
Compensation Act. We decline to disturb the Commission’s
order.
Bade-Brown v. Labor Commission
BACKGROUND
¶2 On July 9, 2007, Petitioner was test-driving a vehicle for
her employer, Low Book Sales and Leasing. While she was
driving on the interstate, the vehicle “began to die.” As
Petitioner attempted to pull the car over, a dump-truck “hit her
in the rear driver’s side.” Petitioner was taken to the emergency
room and was diagnosed with “a head contusion,” “back strain,
cervical strain, and a chest wall contusion.” Between July 2007
and March 2011, Petitioner reported experiencing “headaches”
as well as pain in her neck, thoracic back, and low back.
She eventually underwent surgery on April 13, 2011, to relieve
the pain.
¶3 On November 28, 2012, she applied for a hearing with the
Commission, seeking temporary total disability compensation
for the period of April 13, 2011, through April 11, 2012. On
October 29, 2013, the Administrative Law Judge (the ALJ) issued
its Amended Interim Findings of Fact and Conclusions of Law in
which it determined, among other things, that there was a
controversy regarding the “medical cause of Petitioner’s current
neck, thoracic back, headaches, and low back problems,” as well
as the “date of medical stability.” Accordingly, the ALJ ordered
that the “medical aspects of the case” be referred to an
independent medical panel.
¶4 The medical panel found “no medically demonstrable
causal connection between the [Petitioner’s] current headaches,
neck, thoracic, and low back pain” and the July 2007 accident.
The panel concluded that while Petitioner “may have suffered
strains/sprains of the cervical, thoracic, and lumbar spines” and
“may have had cervicogenic headaches” due to the accident,
those symptoms “would have resolved within the first few
months after the accident.” It based this conclusion on evidence
that the initial pain was “mostly in [her] chest” and that the
“wide spread pain” did not “appear in her medical record until
several months after the accident.” The panel also noted that
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Petitioner had had “multiple scans visualizing all of the
potentially affected body areas” and that none of them indicated
anything other than “mild degenerative changes appropriate for
her age.” The panel then concluded that Petitioner’s medical
condition stabilized within six months of the accident and
assigned January 1, 2008, as the medical stabilization date.
¶5 Petitioner timely objected to the medical panel’s report.
However, the ALJ determined in its May 2014 Findings of Fact,
Conclusions of Law, and Order that “[a] preponderance of the
medical evidence supports a finding that there is no medical
causal connection” between Petitioner’s headaches, back and
neck pain, and the accident. The ALJ also found that the
preponderance of the evidence established that Petitioner
reached medical stability as of January 2008, like the medical
panel had found. Because Petitioner sought disability benefits
for a period beginning in April 2011, the ALJ determined that
Petitioner was not entitled to “any additional temporary total
disability compensation” and dismissed with prejudice
Petitioner’s claims for “temporary total disability compensation,
medical treatment, and permanent partial disability
compensation.”
¶6 Petitioner filed a motion for review with the Commission,
arguing that the ALJ abused its discretion by admitting the
medical panel report into evidence despite glaring deficiencies in
the report, and that the report should have been excluded or,
alternatively, that a hearing should have been held to resolve the
deficiencies. Petitioner also argued that a hearing should have
been held to investigate potential bias of the medical panel’s
chairman, alleging that the chairman was biased against injured
workers. In response, the Commission determined that the
medical panel’s conclusion about medical causation was
“supported by the medical evidence,” that it was “the product of
impartial [review],” and that, as the ALJ had determined,
Petitioner was not entitled to benefits between April 2011 and
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April 2012. In particular, the Commission found that Drs.
Anden, Passey, and Knoebel, who had previously examined
Petitioner, had all concluded, as did the medical panel, that
Petitioner’s “current complaints” were the product of “a
separate condition that was not medically caused by the
accident.” It also noted that only one doctor—Dr. Humpherys—
had found Petitioner’s “ongoing neck and back problems” to be
“causally connected to the accident.” The Commission agreed
with Petitioner, however, that the medical panel’s conclusion
regarding the January 2008 medical stability date was “not
supported by the medical evidence” and that the medical panel’s
Maximum Medical Improvement (MMI) 1 date determination
appeared instead to be simply “an estimation based on the
panel’s experience.” The Commission determined that it was
therefore “not bound by that finding in the panel’s report.”
Nonetheless, the Commission determined that because there was
no causal connection between Petitioner’s “current” complaints
and the accident, the “medical panel’s opinion on the date of
medical stability does not alter any entitlement she may have to
such benefits.”
¶7 Petitioner filed a motion for reconsideration, which the
Commission denied. Petitioner seeks judicial review.
ISSUES AND STANDARD OF REVIEW
¶8 Petitioner presents two challenges to the Commission’s
order. First, she argues that the Commission erred by affirming
the ALJ’s refusal to exclude the medical panel report. Second,
1. The MMI is the date that “the period of healing has ended and
the condition of the claimant will not materially improve” and is
thus “the critical point for termination of temporary disability.”
See Reddish v. Sentinel Consumer Prods., 771 P.2d 1103, 1104 (Utah
Ct. App. 1989) (citation and internal quotation marks omitted).
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she argues, in the alternative, that the Commission abused its
discretion by not remanding the case for a hearing to resolve the
alleged deficiencies in the medical panel report and to
investigate potential bias of the medical panel. We review the
Commission’s refusal to exclude a medical panel report or
remand for an objection hearing “under an abuse of discretion
standard, providing relief only if a reasonable basis for that
decision is not apparent from the record.” Borja v. Labor Comm’n,
2014 UT App 123, ¶ 9, 327 P.3d 1223 (citation and internal
quotation marks omitted).
ANALYSIS
¶9 Petitioner argues that the Commission abused its
discretion by admitting the medical panel report into evidence.
She first contends that the medical panel report should have
been excluded because of its “glaring” failure to “find [a]
medically supportable [MMI]” date. She next contends that the
reports the medical panel (and, later, the Commission) relied on
to make its MMI and causation determinations had “glaring
deficiencies themselves.” She then asserts that the medical panel
report should also have been excluded on the basis of potential
bias. While she contends that these deficiencies can only be
cured by excluding the medical panel report, she alternatively
argues that the Commission should not have denied her request
for a hearing to resolve these objections.
¶10 As we explained in Johnston v. Labor Commission, 2013 UT
App 179, 307 P.3d 615, Utah Code section 34A-2-601
“contemplates three potential scenarios in which a medical panel
report can be admitted into evidence.” Id. ¶ 26. The first is
“where no objection to the medical report is made” and the
report is “admitted into evidence.” Id.; see also Utah Code Ann.
§ 34A-2-601(2)(f)(i) (LexisNexis Supp. 2015). The second “occurs
when an objection to the medical panel report is timely filed and
the administrative law judge . . . convenes a hearing on the
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objection.” Johnston, 2013 UT App 179, ¶ 26; see also Utah Code
Ann. § 34A-2-601(2)(f)(i). In this scenario, the medical panel
report “‘may not be considered as evidence . . . except as far as
the report is sustained by the testimony admitted.’” Johnston,
2013 UT App 179, ¶ 26 (quoting Utah Code Ann. § 34A-2-
601(2)(g)(ii)). The third scenario, not expressly addressed in the
statute, describes the circumstances here—“when an objection to
the report is timely filed but the administrative law judge elects
not to hold an objection hearing.” Johnston, 2013 UT App 179,
¶ 27; see also Utah Code Ann. § 34A-2-601(2)(f)(i). We determined
in Johnston that the “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.” Johnston,
2013 UT App 179, ¶ 28. If the objection is obviously well taken,
“no amount of supporting testimony [can] overcome the report’s
glaring deficiencies” and the “objection should simply be
sustained and the medical panel report excluded.” Id. ¶ 30.
However, if the objection is obviously “not well taken, then the
medical panel report will have no readily apparent deficiencies
and [additional] supporting foundational testimony will not be
necessary to substantiate the report’s validity.” Id.
¶11 We therefore address the question of whether the medical
panel report was admissible by following the analytic structure
set out in Johnston. We first determine whether an objection
hearing was properly denied and then determine whether, in
light of the deficiencies Petitioner asserts, the medical panel
report was properly admitted.
I. Denial of Petitioner’s Objection Hearing
¶12 As a general matter, the medical panel’s role is to assist
the Commission by “evaluat[ing] medical evidence” and
advising the Commission “with respect to [its] ultimate fact-
finding responsibility.” See Blair v. Labor Comm’n, 2011 UT App
248, ¶ 18, 262 P.3d 456 (citation and internal quotation marks
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omitted). This assistance is particularly important in cases like
Petitioner’s, where medical causation is at issue. Medical
causation requires the claimant to prove by a preponderance of
the evidence that “the disability is medically the result of an
exertion or injury that occurred during a work-related activity.”
See Allen v. Industrial Comm’n, 729 P.2d 15, 23, 26 (Utah 1986).
Obtaining “the expertise of the medical panel” should more
readily enable the Commission “to make the determination of
whether the injury sustained by a claimant is causally connected
or contributed to by the claimant’s employment.” Id. at 27(citation and internal quotation marks omitted).
¶13 While it certainly “is not unusual for . . . the Commission
to adopt the findings of a medical panel,” Moyes v. State, 699 P.2d
748, 753 (Utah 1985), the Commission is not required to do so, see
Utah Code Ann. § 34A-2-601(e)(ii) (“[A]n administrative law
judge is not bound by a [medical panel] report . . . if other
substantial conflicting evidence in the case supports a contrary
finding.”). Even if the ALJ chooses to adopt the medical panel’s
report, “it is the prerogative and the duty of the Commission to
consider not only the report of the medical panel, but also all of
the other evidence and to draw whatever inferences and
deductions fairly and reasonably could be derived therefrom.”
Blair, 2011 UT App 248, ¶ 19 (citation and internal quotation
marks omitted). Ultimately, the Commission, not the medical
panel, is the fact-finder, and in that capacity, it may “choose to
give certain evidence more weight than other evidence,” so long
as there is “substantial evidence when viewed in light of the
whole record” to support its findings. See Virgin v. Board of
Review, 803 P.2d 1284, 1287, 1289 (Utah Ct. App. 1990) (citation
and internal quotation marks omitted).
A. The Report’s MMI Error
¶14 Petitioner cites Johnston to support her argument that it is
an abuse of discretion for an ALJ to deny a hearing if an
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objection identifies a potentially “glaring deficienc[y]” in the
medical panel report. (Citing Johnston, 2013 UT App 179, ¶ 30.)
An objection based on such errors, she asserts, is “well taken.”
But Johnston does not say that a hearing is necessary to resolve
all objections to or errors in a medical panel report. Rather,
Johnston holds that it is wrong to deny a hearing only when there
is no “reasonable basis” discernible from the record to justify
that denial. The implication of this holding is that not every error
in a medical panel report will be “glaring,” in the sense that it
will “substantially impair the adequacy” of the Commission’s
ultimate findings and conclusions, particularly when the
Commission declines to adopt the error. See Moyes, 699 P.2d at
753. In other words, not all errors are of sufficient significance to
justify the time and expense of a hearing, and the ALJ’s
discretion whether to hold an objection hearing must also
include discretion to assess the relative significance of an error in
the medical panel’s report. See Utah Code Ann. § 34A-2-
601(2)(f)(i) (“If a written objection to a [medical panel] report is
filed, . . . the administrative law judge may set the case for
hearing to determine the facts and issues involved.” (emphasis
added)).
¶15 The Commission may also, in its role as the ultimate fact-
finder, choose to “rely on one portion of a medical panel report
and to reject other inconsistent portions.” Virgin, 803 P.2d at
1290; see also Utah Code Ann. § 34A-2-601(2)(e)(ii). If the
Commission chooses to reject a portion of the medical panel’s
report, so long as there is substantial evidence on the record
independent of the report to support the Commission’s findings,
further inquiry by way of a hearing is not required. See
Intermountain Health Care, Inc. v. Board of Review, 839 P.2d 841,
846 (Utah Ct. App. 1992) (“It is not the role of the medical panel
to resolve conflicts in the factual evidence regarding the injured
party’s activities.” (citation and internal quotation marks
omitted)); see also Moyes, 699 P.2d at 753 (“[I]t [is] the prerogative
and the duty of the Commission to consider not only the report
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of the medical panel, but also all of the other evidence and to
draw whatever inferences and deductions [that] fairly and
reasonably could be derived therefrom.” (second and third
alterations in original) (citation and internal quotation marks
omitted)).
¶16 In this case, the Commission had a “reasonable basis” to
affirm the ALJ’s decision to deny a hearing on the MMI date
error in the medical panel report. The Commission concluded
that the medical panel’s MMI finding was not supported by
the evidence and that it was error for the ALJ to adopt that
finding. But the Commission also concluded, through its own
independent evaluation of the record, that even if the finding
placing MMI on January 1, 2008, was wrong, other “substantial
evidence” supported an MMI date prior to April 2011. The
Commission relied on several medical records showing that
“[Petitioner] was medically stable from her work injuries by mid
2008, which was years before she underwent cervical-spine
surgery.” For example, Dr. Brandt stated in April 2008 that
Petitioner “is nearing maximum medical improvement” and
again in July 2008 that Petitioner was “reaching medical
stability.” Dr. Passey stated in June 2008 that “[t]he [Petitioner]
has achieved maximal Medical improvement.” Dr. Knoebel
stated that Petitioner had reached maximum medical
improvement as of June 4, 2008. Only Dr. Humpherys opined
that Petitioner reached MMI after her 2011 surgery. As a result,
the Commission in essence concluded that the medical panel’s
flawed MMI finding was harmless because the preponderance of
the evidence still indicated that Petitioner was not entitled to
benefits between April 2011 and April 2012. See Blair, 2011 UT
App 248, ¶ 13 (concluding that an omission regarding medical
history in an ALJ’s interim findings was “harmless” because the
reviewing medical panel received a copy of the medical records
exhibit and based its report on those records).
20141052-CA 9 2016 UT App 65Bade-Brown v. Labor Commission
¶17 We are not persuaded that the Commission’s decision not
to remand to the ALJ for a hearing on the medical panel report
was an abuse of discretion. Although the Commission ultimately
rejected the medical panel’s date for Petitioner’s MMI, three of
the four doctors to opine on the question agreed that Petitioner
achieved MMI before her 2011 surgery. And even though the
panel’s MMI finding was ultimately rejected by the Commission,
the panel’s overall conclusion regarding causation was not. 2
B. Medical Report Unreliability
¶18 We also are not persuaded that it was an abuse of
discretion for the Commission to deny an objection hearing to
resolve the alleged unreliability of certain doctors’ reports that
the Commission relied upon to make its causation conclusions.
Petitioner argues that the reports the Commission primarily
relied upon to conclude that she had reached MMI prior to her
2. To the extent that Petitioner’s argument may encompass a
claim that the MMI error amounted to such a “glaring
deficiency” that the panel’s report ought to have been
disregarded entirely, we note that the Commission concluded
that the panel’s MMI date likely came from a professional
judgment based on medical experience rather than on the
specific facts of the case and therefore did not consider the error
to be broadly disqualifying. Because the Commission found that
the medical panel’s MMI error was not a “material misstatement
of fact . . . because other substantial evidence preponderates to
show that [Petitioner] was medically stable from her work
injuries prior to her cervical-spine surgery,” the Commission’s
judgment in this regard is entitled to deference. “We must
uphold the Commission’s factual findings if such findings are
supported by substantial evidence based upon the record as a
whole.” Mitchell v. Labor Comm’n, 2015 UT App 94, ¶ 4, 348 P.3d
356 (citation and internal quotation marks omitted).
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2011 surgery—the reports of Drs. Brandt, Passey, and Knoebel—
each had deficiencies that should have disqualified them and
any conclusions drawn from them. In particular, Petitioner
asserts that Dr. Brandt “never actually fixed a date of MMI” but
instead just stated that Petitioner “was approaching or reaching
MMI”; that Dr. Passey “minimized” and “somehow managed to
miss the . . . reports of radicular symptoms” and was instead
“intent on diagnosing the [Petitioner] with fibromyalgia”; and
that Dr. Knoebel merely “relied on his belief that there were no
reports prior to 2011 of [Petitioner] suffering any radicular
symptoms” when he opined that MMI had been reached as of
June 2008, and completely “ignored” Petitioner’s doctor’s visit in
September 2007 that “clearly showed significant and specific
[radicular] pain.” Petitioner also contends that “the doctors that
did notice the [early] radicular symptoms . . . also either found
medical causation or said causation was quite possible.”
Petitioner argues that based on the allegedly deficient medical
opinions, the Commission erroneously adopted a finding that
Petitioner “did not have widespread pain for months after the
accident” and “any pain attributable to the accident would have
resolved itself within a few months.”
¶19 Petitioner essentially argues that the Commission should
have given more weight to certain doctor’s reports—in
particular, Dr. Humpherys’s report—and that it was an error for
the Commission to have taken “Doctors Brandt, Knoebel, and
Passey’s timeframe [regarding causation and MMI] over Dr.
Humpherys’s.” We disagree. It is the Commission’s role as the
ultimate fact-finder to weigh the evidence and make credibility
determinations. See Virgin v. Board of Review, 803 P.2d 1284, 1289
(Utah Ct. App. 1990) (stating that “the Commission is the
ultimate fact finder in workers’ compensation cases” and “may
choose to give certain evidence more weight than other
evidence”). An appellate court will not “reweigh the evidence”
unless the petitioner is able to show that the Commission’s
findings and conclusions regarding causation are not supported
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by “substantial evidence.” See Danny’s Drywall v. Labor Comm’n,
2014 UT App 277, ¶ 31, 339 P.3d 624 (“[T]his court may not
reweigh the evidence because assigning such weights is the
prerogative of the Commission.” (citation and internal quotation
marks omitted)). As discussed above, it is “the province of [the
Commission]”—not the medical panel—“to view all the
evidence submitted as a whole and then make an appropriate
determination.” Johnston v. Labor Comm’n, 2013 UT App 179,
¶ 24, 307 P.3d 615 (emphasis added). We will not revisit the
Commission’s conclusions where the Commission considered
the available evidence on the record—including, but not limited
to, the medical panel’s report and the ALJ’s findings—and
thereafter determined that “substantial evidence” supported one
determination more than another.
¶20 Here, it is apparent that the Commission considered the
available evidence prior to determining that there was
“substantial evidence [to] support [an MMI] finding contrary to
the medical panel’s opinion and [which] outweighs the opinion
of Dr. Humpherys.” 3 In its order affirming the ALJ’s decision,
the Commission specifically noted that the reports of Drs.
Anden, Passey, and Brandt each “differentiated” between
3. We also note that the Commission, in its order denying
request for reconsideration, specifically found that “[t]he
preponderance of the evidence is contrary to Dr. Humpherys’s
opinion with regard to the date of medical stability in question.”
This finding is entitled to our deference. See Migliaccio v. Labor
Comm’n, 2013 UT App 51, ¶ 7, 298 P.3d 676 (“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.” (citation and internal quotation
marks omitted)).
20141052-CA 12 2016 UT App 65Bade-Brown v. Labor Commission
“separate symptoms characterized as myofascial pain that was
not medically caused by the accident” and the “strains to
[Petitioner’s] spine” that were caused by the accident. It stated
that “the medical panel acknowledged that [Petitioner] may
have suffered . . . headaches and strains in her neck and back
from the accident” but that “[t]he opinions of Dr. Passey and Dr.
Knoebel support the medical panel’s conclusion that
[Petitioner’s] current complaints for which she seeks benefits are
not the spinal strains from the accident but [are instead] a
separate condition that was not medically caused by the
accident.” The Commission also noted that the “imaging
studies” the medical panel based its causation conclusion upon
“reveal[ed] only nonspecific findings in [Petitioner’s] spine.”
Based on this, the Commission determined that “[t]he opinions
of Dr. Anden, Dr. Passey, Dr. Knoebel, and the medical panel
show that [Petitioner] sustained only temporary strains from the
work accident, while only Dr. Humpherys found [Petitioner’s]
ongoing neck and back problems” to be medically caused by the
accident. (Emphasis added.) The Commission ultimately
concluded that “[Petitioner] has not established that her current
condition was medically caused by the 2007 work accident.”
¶21 Petitioner has not demonstrated that this conclusion
was unsupported by the evidence. Rather, Petitioner merely
suggests that Drs. Brandt, Passey, and Knoebel “minimized”
or inappropriately focused on other potential causes of
Petitioner’s ongoing pain. However, even if individual doctor’s
reports might have disagreed regarding the chronology of
Petitioner’s symptoms and treatment recommendations, those
disagreements do not render their medical opinions inherently
deficient or flawed. Cf. Danny’s Drywall, 2014 UT App 277, ¶ 30
(“The presence of conflicting evidence does not negate the
administrative law judge’s discretion to base his or her findings
on the medical panel report.”). Nor will those disagreements
necessarily render the medical panel’s findings or the
Commission’s conclusions drawn from the medical reports
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glaringly deficient. See id.; Intermountain Health Care, Inc. v. Board
of Review, 839 P.2d 841, 846 (Utah Ct. App. 1992).
¶22 Moreover, Petitioner’s own disagreement with certain
medical opinions does not render those medical opinions any
less substantial. “While Petitioner[] ha[s] identified a possible
conflict in the evidence, [i]t is the province of [the Commission],
not appellate courts, to resolve conflicting evidence, and where
inconsistent inferences can be drawn from the same evidence, it
is for [the Commission] to draw the inferences.” Cook v. Labor
Comm’n, 2013 UT App 286, ¶ 19, 317 P.3d 464 (third alteration in
original) (citation and internal quotation marks omitted).
A petitioner cannot bear her burden of persuading an appellate
court that the Commission abused its discretion when the
Commission denied a hearing to resolve conflicts in the medical
evidence by merely suggesting that the medical reports relied
upon ignored or minimized particular evidence that a petitioner
believes would otherwise support causation arguments. That is
just the sort of evidentiary conflict that is within the
Commission’s purview to resolve. Thus, Petitioner has not
persuaded us that the Commission erred when it relied on those
reports to reach its causation conclusion. As a result, we are
unable to conclude that the Commission abused its discretion
when it declined to hold a hearing to resolve the MMI causation
issue.
C. Potential Medical Panel Chair Bias
¶23 Petitioner also contends that the Commission should have
ordered a hearing to determine whether the medical panel’s
report was the result of bias—that is, to “ferret out any possible
bias in favor of the insurance industry.” Petitioner alleges that
there is “at minimum a heavy appearance of bias” in her case
because Dr. Jarvis, the panel’s chair, “has established a pattern of
ignoring evidence that favors the injured worker.” In support of
this allegation, Petitioner cites a February 2013 “Performance
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Audit of the Labor Commission’s Adjudication Division”
completed by Utah’s Office of the Legislative Auditor General
that obliquely questioned the objectivity of two unnamed
occupational medicine panel chairs because of their “close ties”
to insurance companies. Petitioner also cites a decision of this
court, Blair v. Labor Commission, 2011 UT App 248, 262 P.3d 456,
where Dr. Jarvis served on the medical panel, and she claims
that in that case Dr. Jarvis “also . . . failed to consider any
evidence favoring the injured worker.”
¶24 Petitioner presented these arguments to the Commission,
and the Commission rejected them. The Commission determined
that Petitioner’s “allegation [was] not substantiated with any
evidence of actual bias” and was “merely speculation based on
inferences from a legislative audit on the Adjudication Division
and its use of medical panels.” The Commission stated that
Petitioner “fail[ed] to acknowledge . . . the many instances in
which Dr. Jarvis’s medical opinions have been favorable to
injured workers” and, moreover, that Petitioner had “not shown
that the medical panel was actually biased against her.” On that
basis, it rejected her argument “that the medical panel’s report
should be excluded.” We conclude that the Commission did not
abuse its discretion when it denied a hearing on the issue of bias.
¶25 As the Commission noted, the 2013 performance audit
cannot support a conclusion that Dr. Jarvis is biased against
injured workers generally or against Petitioner specifically. Dr.
Jarvis is not named in the report, and Petitioner merely assumes
that he must be one of the doctors referred to because he is also a
medical panel chair. Moreover, the performance audit did not
definitively state that the two occupational medical panel chairs
were actually biased; it simply voiced a concern that ties to an
insurance company “may lead some to question” objectivity.
Like the Commission, we decline to infer that specific bias exists
in this case from a general audit report that does not identify the
referenced doctors and only raises a question about the potential
20141052-CA 15 2016 UT App 65Bade-Brown v. Labor Commission
for bias. See Johnston v. Labor Comm’n, 2013 UT App 179, ¶ 20, 307
P.3d 615 (declining to find that the sole member of the medical
panel was biased where petitioner “merely speculates that there
are legitimate questions” as to the member’s “ability to render a
neutral opinion” and does not explain why the evidence cited as
proof “has any bearing” on the member’s ability to be objective
(internal quotation marks omitted)).
¶26 In addition, Petitioner’s reliance on Blair to support her
allegation of bias against Dr. Jarvis is misplaced. Blair was not
remanded because of medical panel bias. Rather, Blair was
remanded for “additional findings” because we determined that
the Commission’s findings regarding “Blair’s factual challenge”
to the medical panel report were inadequate to permit
meaningful review. 2011 UT App 248, ¶¶ 20–23. Thus, Blair does
not support Petitioner’s contention that “Dr. Jarvis has
established a pattern of ignoring evidence that favors the injured
worker.” Moreover, Petitioner has failed to point to any fact—
other than the medical panel’s causation conclusion—that
demonstrates actual bias in her case.
¶27 In sum, we conclude that the Commission did not abuse
its discretion when it denied an objection hearing to resolve the
issues surrounding the MMI date and causation, alleged
deficiencies in certain medical opinions, and potential bias of the
medical panel chair.
II. Admissibility of the Medical Panel Report
¶28 Because we have decided that the Commission did not
abuse its discretion by refusing to remand for a hearing on
Petitioner’s objections to the medical panel report, “the medical
panel report’s admissibility will turn on whether the
[Petitioner’s] objection to the report is well taken” or not.
Johnston, 2013 UT App 179, ¶ 33. An objection is well taken if “no
amount of supporting testimony [can] overcome the report’s
glaring deficiencies.” Id. ¶ 30. An objection is not well taken if
20141052-CA 16 2016 UT App 65Bade-Brown v. Labor Commission
the claims do not have “any tangible support in the record” or if
the “grounds for the objection have no merit.” Id. ¶ 31. And if it
is “obvious” from the order denying the hearing that the
objection regarding the medical panel report is “not well taken,”
the “report will be treated as if no objection had been made” and
will be “admitted into evidence.” Id. ¶ 30. Petitioner argues that
her objections were well taken because of alleged deficiencies in
the medical panel report and the medical records relied on to
make determinations regarding her entitlement to disability
benefits, and because of the potential bias of the medical panel’s
chair. For the same reasons discussed above, we disagree and
conclude that Petitioner’s objections were not well taken.
¶29 First, Petitioner’s objection to the medical panel report on
the basis of the MMI error has no merit. As discussed above, the
Commission determined that notwithstanding conflicting
evidence regarding medical causation, the medical panel report’s
MMI finding was “not a material misstatement of fact . . .
because other substantial evidence preponderate[d] to show that
she was medically stable from her work injuries prior to her
cervical-spine surgery.” Thus, the MMI error in the medical
panel report did not affect the Commission’s ultimate conclusion
that Petitioner reached MMI prior to her 2011 surgery.
Accordingly, this objection is not well taken. See Johnston, 2013
UT App 179, ¶ 30.
¶30 Second, Petitioner’s argument that the medical reports
relied upon by the panel (and, later, the Commission) were
glaringly flawed also lacks merit. As discussed above,
Petitioner’s arguments ultimately go to the weight and the
credibility of the various medical opinions, which are squarely
within the Commission’s role to resolve as ultimate fact-finder.
Petitioner has not shown that the medical opinions she contests
could not constitute substantial evidence to support a causation
conclusion. Nor has Petitioner demonstrated that Dr.
Humpherys’s report is the one unflawed report that should have
20141052-CA 17 2016 UT App 65Bade-Brown v. Labor Commission
been relied upon to the exclusion of the other doctors’ reports.
Accordingly, this objection is not well taken. See id.
¶31 Finally, Petitioner’s objection to the medical panel report
on the basis of bias is also not well taken. As the Commission
noted, Petitioner’s contention was “mere[] speculation” based on
inferences from a legislative performance audit, and Petitioner
failed to point toward any actual evidence of bias in her case.
Accordingly, this objection finds no support in the record. See id.
¶32 Thus, because we conclude that the bases for Petitioner’s
objections are not supported by the record and have no merit,
the objections were not well taken. See id. ¶ 31. Therefore, the
Commission properly admitted the medical panel report “as if
no objection had been made.” See id.CONCLUSION
¶33 An administrative law judge has discretion to choose
whether to hold a hearing when an objection is timely filed to a
medical panel report. We will not disturb that decision unless
“there is no reasonable basis for the decision apparent in the
record.” In this case, the record indicates that the Commission
acted within its discretion by denying a hearing based on glaring
deficiency and potential bias. In addition, because Petitioner’s
objections to the medical panel report were not well taken, it was
not error to admit the report. Consequently, we decline to
disturb the Commission’s order.
20141052-CA 18 2016 UT App 65