Quast v. Utah Labor Comm'n

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 40IN THE
SUPREME COURT OF THE STATE OF UTAH
RASHELL QUAST,
Respondent,
v.
UTAH LABOR COMMISSION, UNIVERSITY OF UTAH
HUNTSMAN CANCER HOSPITAL, and
WORKERS COMPENSATION FUND,
Petitioners.
No. 20151041
Filed July 25, 2017
On Certiorari to the Utah Court of Appeals
Attorneys:
Hans M. Scheffler and Michael D. Karras, Sandy, for petitioners
Workers Compensation Fund and University of Utah
Huntsman Cancer Hospital
Jaceson R. Maughan, Salt Lake City, for petitioner
Utah Labor Commission
Daniel F. Bertch and Kevin K. Robson,
Salt Lake City, for respondent
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and JUDGE PETTIT joined.
ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.
Having recused himself, JUSTICE PEARCE did not participate herein;
DISTRICT COURT JUDGE KARA PETTIT sat.
JUSTICE HIMONAS, opinion of the Court:
QUAST v. UTAH LABOR COMMISSION
Opinion of the Court
INTRODUCTION
¶ 1 After a slip and fall at work, Rashell Quast petitioned the Utah
Labor Commission for an award of permanent total disability
compensation against her former employer, the University of Utah
Huntsman Cancer Hospital (Huntsman). Reversing the order of an
administrative law judge (ALJ), the Labor Commission concluded that
Ms. Quast had failed to make out a permanent total disability claim.
¶ 2 Ms. Quast sought judicial review of the Labor Commission’s
order from the Utah Court of Appeals, which set aside the Labor
Commission’s order and allowed the ALJ’s award of benefits to
Ms. Quast to stand. See Quast v. Labor Comm’n, 2015 UT App 267, 362
P.3d 292.
¶ 3 We granted certiorari and now reverse. Based on our analysis
in Oliver v. Utah Labor Commission—a case we decide
contemporaneously with this one—we hold that the court of appeals
misinterpreted the permanent total disability statute’s requirement that
employees must prove that they suffer from an impairment that limits
their ability to do basic work activities. 2017 UT 39, __ P.3d __.
Applying the correct interpretation, we find that substantial evidence
supported the Labor Commission’s determination, and we reverse the
court of appeals. We also conclude that both the court of appeals and
the Labor Commission misstated the burden of proof with respect to
whether an employee seeking permanent total disability benefits can do
other reasonably available work. UTAH CODE § 34A-2-413(1)(c)(iv).
BACKGROUND
¶ 4 On May 16, 2007, Ms. Quast was working as a hospital
housekeeper at Huntsman when she slipped and fell on a wet floor,
permanently aggravating a preexisting thoracic spine injury. After two
surgeries (in 2008 and 2010), Ms. Quast filed a claim for permanent total
disability benefits.
¶ 5 The parties submitted conflicting medical evidence. Some
evidence apparently suggested that Ms. Quast was totally disabled. By
contrast, Huntsman’s medical consultant opined that Ms. Quast’s only
medical restrictions were that she “should not lift more than 20 pounds
and should avoid repetitive flexion or extension of her spine.”
¶ 6 Ms. Quast also underwent two functional capacity
evaluations, administered in 2010 and 2012. These reflected that she
had “full functional range of motion throughout her entire spine” and
that she “tolerated repetitive forward reaching.” They also indicated
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that Ms. Quast could lift up to twenty pounds and had the ability to do
light work. The specialist who administered the 2012 evaluation noted
that Ms. Quast was “not reliable in her efforts” and exhibited signs of
symptom magnification.
¶ 7 At an evidentiary hearing on January 27, 2011, Ms. Quast
testified that she was largely incapacitated as a result of her accident.
She testified that she could not stand for long periods of time or bend
down without suffering pain, that she could not lift a laundry basket or
a gallon of milk, and that she could not easily stand up from a
crouching position. Ms. Quast also testified that she suffered from
disabilities that predated her accident, including dyslexia and
urological problems. She lacks a high school degree and has a limited
intellectual capacity.
¶ 8 For its part, Huntsman called a vocational rehabilitation
expert and a job-development specialist employed by the Workers
Compensation Fund. Based on Ms. Quast’s educational limits and the
work restrictions outlined by Huntsman’s medical consultant, the
vocational expert testified that Ms. Quast could do unskilled work that
required light physical activity. He also testified that this work
included certain kinds of housekeeping as well as unskilled assembly
work. The job-development specialist then identified specific jobs in the
area around Salt Lake City that fit the parameters the vocational expert
had outlined. On cross-examination, the job-development specialist
acknowledged that he had not personally verified with each employer
that somebody with Ms. Quast’s specific limitations would be able to
do these jobs.
¶ 9 After the January 27 evidentiary hearing, an ALJ tentatively
awarded Ms. Quast permanent total disability benefits, but the Labor
Commission reversed this award and remanded the case for further
fact-finding. After a second evidentiary hearing in this matter, at which
no new witnesses were called, an ALJ again awarded Ms. Quast
permanent total disability benefits.
¶ 10 The Labor Commission again reversed the ALJ’s award. It
concluded that Ms. Quast had failed to prove that she was limited in
her ability to do basic work activities. The Labor Commission
acknowledged that, at the time of her accident, Ms. Quast suffered from
a variety of long-standing conditions: “a learning disorder, urological
problems, migraines, and thoracic-spine problems.” But because she
had been able to work for many years with these preexisting
conditions, the Labor Commission concluded that they did not
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Opinion of the Court
“reasonably limit her ability to do basic work activities.” After
reviewing the medical and vocational evidence that had been presented
in the case, the Labor Commission found that Ms. Quast could do work
in the “light physical demand category of jobs.” It also found that
Ms. Quast had failed to prove that she was limited in her ability to
communicate, report for work, or remain at work throughout the day.
It concluded that “[b]ased on the evidence presented, the Commission
finds Ms. Quast has not shown that her impairments limit her ability to
do basic work activities.”
¶ 11 Although not necessary to its resolution of the case, the Labor
Commission then turned to the question whether Ms. Quast had
proved another element of a permanent total disability claim: that there
was no other work reasonably available to her. UTAH CODE § 34A-2-
413(1)(c)(iv). The Labor Commission noted that Huntsman had put on
testimony that Ms. Quast was able to work as an unskilled housekeeper
at a hotel or assisted living facility, but it held that Huntsman’s
witnesses had not provided enough information about the “bending
requirements” of those jobs. On this basis, it concluded that Huntsman
“did not meet its burden of showing that there is other work reasonably
available to Ms. Quast.”
¶ 12 Ultimately, the Labor Commission denied Ms. Quast’s
application for permanent total disability benefits on the ground that
she had failed to show that she was limited in her ability to do basic
work activities.
¶ 13 The court of appeals reversed the Labor Commission’s order.
It faulted the Labor Commission for concluding that, because her
impairments did not “reasonably” limit her, Ms. Quast was not limited
in her ability to perform basic work activities. Quast v. Labor Comm’n,
2015 UT App 267, ¶ 10, 362 P.3d 292. Instead, the court of appeals held
that the Labor Commission’s findings about the various ways in which
Ms. Quast’s injury had negatively affected her ability to work required
the Labor Commission to conclude that Ms. Quast was limited in her
ability to do basic work activities as a matter of law. Id. ¶¶ 9–10. The
court of appeals also concluded that Huntsman had “failed to prove
that there was other work reasonably available to [Ms.] Quast.” Id. ¶ 10.
It accordingly reversed the Labor Commission and reinstated the ALJ’s
order awarding Ms. Quast permanent total disability benefits.
¶ 14 We now reverse the court of appeals.
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STANDARDS OF REVIEW
¶ 15 “On certiorari, we give the court of appeals’ decision no
deference and review its decision under a correctness standard.”
Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3. We also
review interpretations of a statute for correctness. See Martinez v. Media-
Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42,
¶ 11, 164 P.3d 384. And when the Labor Commission’s factual
determinations are properly before us on review, we review them
under the substantial evidence standard of review, examining the
whole record to determine whether “‘a reasonable mind might accept
as adequate the evidence supporting the decision.’” Id. ¶ 35 (citation
omitted).
ANALYSIS
I. BASIC WORK ACTIVITIES
¶ 16 In another case we decide today, Oliver v. Utah Labor
Commission, 2017 UT 39, __ P.3d __, we reverse the court of appeals’
interpretation of the “basic work activities” provision of the permanent
total disability statute, under which employees must prove that they
suffer from “an impairment or combination of impairments that limits
the employee’s ability to do basic work activities.” UTAH CODE § 34A-2-
413(1)(c)(ii).1
¶ 17 The court of appeals’ interpretation of the basic work
activities provision in Quast draws heavily on its interpretation in
Oliver. See Quast v. Labor Comm’n, 2015 UT App 267, ¶¶ 8–9, 362 P.3d
292. In Quast, as in Oliver, the court of appeals concluded that
employees establish a limit on their basic work activities whenever they
can show the existence of an impairment that to some extent
“negatively affects” their ability to do typical workplace activities. Id.
¶ 8 (citation omitted). As the court of appeals put it, “[t]here is no
qualitative restriction before a finding of ‘limited’ can be made.” Id. ¶ 9.
For the court of appeals, therefore, the Labor Commission’s findings
that Ms. Quast’s “work-related spine impairment impacts her ability to
do at least some of the work she has done for her entire career” and that
“her impaired lifting ability precludes [Ms. Quast] from returning to
1 We cite to an older version of the basic work activities provision
because the legislature amended it last year. See 2016 Utah Laws 168; see
also Oliver v. Utah Labor Comm’n, 2017 UT 39, ¶ 2 n.1, __ P.3d __.
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Opinion of the Court
the work for which she was qualified at the time of the accident”
required the Labor Commission to find that she was limited in her
ability to perform basic work activities as a matter of law. Id. ¶ 10.
¶ 18 For the same reasons we describe in Oliver, the court of
appeals’ interpretation here is inconsistent with the text of the basic
work activities provision and our precedent. See Oliver, 2017 UT 39, ¶ 2.
As the Labor Commission properly determined, a limitation that
negatively affects a typical workplace activity, without also
meaningfully impacting the employee’s ability to do the core tasks that
are critical to a broad spectrum of different jobs, is not a limit on basic
work activities at all.2
¶ 19 We now turn to whether substantial evidence supports the
Labor Commission’s determination. When an appellate court reviews a
trial court or administrative agency’s decision under the substantial
evidence standard of review, it examines the whole record to determine
whether “‘a reasonable mind might accept as adequate’ the evidence
supporting the decision.” Martinez v. Media-Paymaster Plus/Church of
Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 35, 164 P.3d 384 (citation
omitted). “To aid the appellate court in conducting a whole record
review, the party challenging the factual findings must marshal all of
the evidence and demonstrate that, despite the facts supporting the
decision, the ‘findings are not supported by substantial evidence.’” Id.
¶ 36 (citation omitted). While an appellate court is not required to
assume that the record supports the findings of the fact-finder in the
absence of marshaling, it may do so at its discretion. Id. ¶¶ 19–20.
¶ 20 Ms. Quast has not marshaled evidence to show that the Labor
Commission’s decision was in error. Additionally, there appears to be
ample record support for the Labor Commission’s determination that
Ms. Quast failed to prove that she was limited in her ability to do basic
work activities. Ms. Quast does not argue that the Labor Commission
erred in its finding that the extent of Ms. Quast’s medical restrictions
were “no lifting more than 20 pounds and no repetitive bending of the
spine.” At the evidentiary hearings, Huntsman’s vocational
rehabilitation expert testified that even assuming a more restrictive set
of medical restrictions than those the Labor Commission ultimately
found, Ms. Quast could still perform jobs in the “light physical demand
2 We discuss the dissent’s concerns with our interpretation of the
basic work activities provision in Oliver, 2017 UT 39, ¶¶ 31–49.
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category.” Another witness for Huntsman identified specific jobs in the
Salt Lake City area for which Ms. Quast was qualified based on their
class description.
¶ 21 Ms. Quast was the only witness who testified on her own
behalf at the evidentiary hearings. She testified that she suffered from a
range of serious deficits that prevented her from doing any sort of
work; even Huntsman’s vocational rehabilitation expert conceded that,
accepting Ms. Quast’s testimony as true, she would not be capable of
doing jobs in the “light physical demand category.”
¶ 22 When we review for substantial evidence, however, we do
not reweigh the evidence. Rather, we look to whether a reasonable
mind might accept the evidence supporting the decision as adequate.
Martinez, 2007 UT 42, ¶ 35. Here, a reasonable mind could certainly
have discounted Ms. Quast’s testimony and instead accepted medical
evidence and the testimony of Huntsman’s vocational rehabilitation
expert. Notably, the record contained evidence that Ms. Quast
magnified her physical limitations, and the Labor Commission noted in
its findings of fact that “Ms. Quast did not give a consistently credible
effort during the [medical] evaluation and exhibited signs of symptom
magnification.” It is also notable that Ms. Quast did not present any
employment or vocational rehabilitation expert testimony—even after
the Labor Commission remanded the case to further explore
Ms. Quast’s “impairment” and “activity restrictions.”
¶ 23 We conclude that the Labor Commission’s determination that
Ms. Quast failed to prove that she was limited in her ability to perform
basic work activities is supported by substantial evidence.
II. BURDEN OF PROOF
¶ 24 Although the Labor Commission ultimately denied her
permanent total disability benefits, it found for Ms. Quast on the
element of whether she could “perform other work reasonably
available.” UTAH CODE § 34A-2-413(1)(c)(iv).
¶ 25 The Labor Commission’s decision on this element was based
on its view that Ms. Quast’s employer had failed to prove that Ms. Quast
was able to do other work. That is, the Labor Commission appears to
have based its determination on defects that it perceived in the
testimony of experts proffered by Ms. Quast’s employer. The court of
appeals agreed with the Labor Commission’s analysis, holding that
Ms. Quast’s “employer failed to prove that there was other work
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Opinion of the Court
reasonably available to [Ms.] Quast.” Quast v. Labor Comm’n, 2015 UT
App 267, ¶ 10, 362 P.3d 292.
¶ 26 It was error for the Labor Commission and the court of
appeals to suggest that Ms. Quast’s employer ever had the burden of
proof on this—or any—element of a permanent total disability claim.
As we have explained, the employee bears the burden of proof on all
elements of a permanent total disability claim. See Provo City v. Utah
Labor Comm’n, 2015 UT 32, ¶ 6, 345 P.3d 1242; Martinez v. Media-
Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42,
¶ 33, 164 P.3d 384. It was thus not the employer’s burden to prove,
through expert testimony or otherwise, that Ms. Quast was capable of
performing other reasonably available work, and it was improper to
find for Ms. Quast on this element based solely on gaps or other
perceived defects in testimony offered by the employer.
¶ 27 We emphasize that we take no position on whether, based on
the evidence before it, the Labor Commission could have reasonably
concluded that Ms. Quast had met her burden of proving that no other
work was reasonably available to her. Nor do we suggest that
Ms. Quast’s burden of proof required her to put on any more evidence
than she did. Indeed, we have no doubt that evidence of the extent of
an employee’s impairment, when combined with the Labor
Commission’s good common sense and general understanding of the
job market, will often be enough to satisfy the employee’s burden of
proof on this element. Our only holding here is that both the court of
appeals and the Labor Commission misstated the burden of proof
when they seemingly assigned it to the employer instead of Ms. Quast.
CONCLUSION
¶ 28 Both the court of appeals and the Labor Commission
misstated the burden of proof on the “other work reasonably available”
element of a permanent total disability claim. The court of appeals also
erred in reversing the Labor Commission’s determination that
Ms. Quast had failed to prove that she was limited in her ability to do
basic work activities. Because this determination is fatal to Ms. Quast’s
claim, we reverse the court of appeals’ decision and affirm the Labor
Commission’s order denying Ms. Quast’s application for permanent
total disability benefits.
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LEE, A.C.J., dissenting
ASSOCIATE CHIEF JUSTICE LEE, dissenting:
¶ 29 The majority reverses the court of appeals and affirms the
decision of the labor commission denying Rashell Quast’s application
for permanent total disability benefits. It does so on the ground that
Quast failed to show that she has an impairment that “limit[s]” her
“basic work activities” under Utah Code section 34A-2-413(1)(c)(ii). In
reaching that conclusion the court applies the standard set forth in
Oliver v. Utah Labor Commission, 2017 UT 39, __ P.3d __.
¶ 30 I wrote separately in Oliver to express my disagreement with
the court’s construction of the “limit” clause of the standard for
establishing a permanent total disability. As I indicated in Oliver, I read
the Workers’ Compensation Act to invoke a legal term of art from
federal (social security) disability law. 2017 UT 39, ¶ 77 (Lee, A.C.J.,
concurring). That standard sets a low bar for proving a “limit” on
“basic work activities.” Instead of requiring proof of a “substantial”
limit that “meaningfully impact[s] the employee’s ability to do . . . core
tasks,” supra ¶ 18, the federal standard requires proof of just a “limit.”
2017 UT 39, ¶ 77 (Lee, A.C.J., concurring). That is the standard applied
by the court of appeals in this case. I would affirm the court of appeals
on this point.
¶ 31 That determination requires me to address another element
of the claimant’s burden for establishing a permanent total disability—
proof that the worker is unable to “perform other work reasonably
available.” UTAH CODE § 34A-2-413(1)(c)(iv). On this element, I agree
that the court of appeals and labor commission erred in “suggest[ing]
that Ms. Quast’s employer . . . had the burden of proof on this—or
any—element of a permanent total disability claim.” Supra ¶ 26. As the
majority indicates, “the employee bears the burden of proof on all
elements of a permanent total disability claim.” Supra ¶ 26. “It was thus
not the employer’s burden to prove, through expert testimony or
otherwise, that Ms. Quast was capable of performing other reasonably
available work, and it was improper to find for Ms. Quast on this
element based solely on gaps or other perceived defects in testimony
offered by the employer.” Supra ¶ 26.
¶ 32 I would reverse on the basis of this error. And I would
remand to allow the labor commission to decide in the first instance
whether Ms. Quast carried her burden of proving that she was unable
to “perform other work reasonably available.”
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