Graphic Packaging Intl v. Labor Commission

2021 UT App 82THE UTAH COURT OF APPEALS
GRAPHIC PACKAGING INTERNATIONAL INC.
AND AMERICAN ZURICH INSURANCE,
Petitioners,
v.
LABOR COMMISSION AND JOSE TORRES,
Respondents.
Opinion
No. 20200210-CA
Filed July 22, 2021
Original Proceeding in this Court
Brad J. Miller and Trent D. Holgate,
Attorneys for Petitioners
Mark J. Sanchez, Attorney for
Respondent Jose Torres
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN
concurred.
HARRIS, Judge:
¶1 While working for Graphic Packaging International Inc.
(the Company), Jose Torres injured his back, then reinjured it at
work a couple of years later. After Torres filed a claim for
workers’ compensation benefits, an administrative law judge
(the ALJ) appointed a medical panel to assist with conflicting
medical opinions on certain issues, but the panel took a long
time to answer the ALJ’s questions and was not able to respond,
to the satisfaction of the ALJ, before its members retired. The ALJ
then appointed a second medical panel, which reached different
conclusions than the first panel. Eventually, the Utah Labor
Commission (the Commission) awarded Torres the temporary
total workers’ compensation benefits he sought. The Company
Graphic Packaging v. Labor Commission
and its insurer seek judicial review of that determination,
specifically challenging the ALJ’s decision to appoint a second
medical panel as well as the sufficiency of the evidence
supporting the Commission’s determination that Torres
reasonably refused the Company’s light-duty work offer. We
decline to disturb the Commission’s award.
BACKGROUND 1
¶2 Torres worked for the Company for more than fifteen
years as a printing press operator, a job that required him not
only to operate the printing press machine, but also to prepare
materials for printing. During his shifts, which “lasted up to
twelve hours,” he “had to frequently move printing cylinders,
paper, and buckets of ink,” as well as “an 80-pound . . . metal
part” that he had to lift “three to ten times” a day.
¶3 On September 16, 2011, Torres “was calibrating the
machine . . . when he slipped on some hydraulic oil on the
floor.” He “lost his balance and twisted his body hard” in an
attempt to grab the machine and regain his balance, but as he
was twisting, he “felt an immediate cold sensation in his low
back.” In this opinion, we refer to these events as the “2011
Accident.”
¶4 Immediately following the 2011 Accident, Torres
attempted to work “for about a week,” but was unable to
“tolerate his duties” and therefore sought medical attention. In
October, Torres received a magnetic resonance imaging scan (the
2011 MRI), which indicated “disc bulges with superimposed
1. “In reviewing an order from the Commission, we view the
facts in the light most favorable to the Commission’s findings
and recite them accordingly.” JBS USA v. Labor Comm’n, 2020 UT
App 86, n.1, 467 P.3d 905 (quotation simplified).
20200210-CA 2 2021 UT App 82Graphic Packaging v. Labor Commission
extrusions at the L4-[L]5 and L5-S1 levels of [his] lumbar spine.” 2
Initial reviewing physicians diagnosed Torres with “[m]ultilevel
degenerative disc disease,” “L4-L5 disc extrusion with left L5
radiculopathy,” and “severe impingement” at both the L4-L5
and L5-S1 levels.3 Torres then visited an occupational health
physician in December, who examined Torres, reviewed the
2011 MRI, and afterward confirmed the diagnosis of a
2. “The vertebral column, or backbone, is made up of
33 vertebrae that are separated by spongy dis[c]s,” and these discs
can, over time with age or as the result of injury, “rupture[], or
herniate[].” Lumbar Disk Disease (Herniated Disk), Johns
Hopkins Medicine, https://www.hopkinsmedicine.org/health/c
onditions-and-diseases/lumbar-disc-disease-herniated-disc [ht
tps://perma.cc/3ZVR-87V5]. “Most dis[c] herniations happen
in the lower lumbar spine, especially between the . . . L4-[L]5 and
L5-S1 levels.” Id. Disc extrusion is one type of herniation where
“the outer part of the spinal disc ruptures, allowing the inner,
gelatinous part of the disc to squeeze out” into the spinal column.
See Washington County School Dist. v. Labor Comm’n, 2013 UT App
205, ¶ 5 n.4, 309 P.3d 299 (quotation simplified).
3. Degenerative disc disease is essentially “arthritis of the spine,”
where “cartilage in the spine joints . . . wear[s] out” over time
from any “combination of factors, such as doing a lot of lifting,
. . . or . . . an injury to the spine.” Degenerative Disc
Disease, Johns Hopkins Medicine, https://www.hopkinsmedici
ne.org/health/conditions-and-diseases/degenerative-disc-dise
ase [https://perma.cc/CQJ8-SADA]. “[R]adiculopathy is a
disease process marked by nerve compression,” or
“impingement,” caused by (among other things) pressure from
herniated disc fluid, which leads to pain, numbness, and other
symptoms. Jason David Eubanks, Cervical Radiculopathy:
Nonoperative Management of Neck Pain and Radicular Symptoms, 81
Am. Family Physician 33, 33–34 (2010).
20200210-CA 3 2021 UT App 82Graphic Packaging v. Labor Commission
“[h]erniated L4-[L]5 disc” and related radiculopathy, as well as
“multilevel degenerative dis[c] disease at virtually every level.”
Based on that diagnosis, the physician referred Torres to a
surgeon (Surgeon), who in turn recommended surgery; Torres
then “underwent discectomy surgery and a lumbar fusion at L5-
S1 in April 2012.” 4
¶5 In October 2012, after recovering from surgery, Torres
returned to full-time work at the Company. He was given
“permanent work restrictions” barring him from bending,
lifting more than forty pounds, and climbing stairs more
than occasionally. At his follow-up visit with Surgeon in
December 2012, Surgeon characterized Torres’s recovery as
being “at maximum medical improvement for work related
activities,” but ordered that he “undergo an impairment rating
to determine permanent restrictions.” Torres underwent an
impairment assessment in February 2013, and was given a 13%
whole person impairment rating based “entirely” on the 2011
Accident.
¶6 Torres continued full-time work for a time under these
restrictions, but in July or August 2013, during one of his regular
shifts, Torres “miscalculated the height of a step,” and as he
stepped down he suddenly developed back pain and “felt like
his leg was giving out.” In this opinion, we refer to these events
as the “2013 Accident.”
4. During a discectomy, “an orthopedic surgeon takes out part
of the damaged disc” in order to alleviate pressure caused
by disc herniation on nerves that are attached to the spinal
cord. Minimally Invasive Lumbar Discectomy, Johns Hopkins
Medicine, https://www.hopkinsmedicine.org/health/treatment-te
sts-and-therapies/minimally-invasive-lumbar-discectomy [https:
//perma.cc/RMK8-E2U9].
20200210-CA 4 2021 UT App 82Graphic Packaging v. Labor Commission
¶7 Over the ensuing weeks, the pain in his lower back
worsened and he continually felt “pain radiating down his left
leg,” prompting him to visit the emergency room and schedule
an appointment with Surgeon. In the emergency room, Torres
rated his pain at “8/10,” and he described to Surgeon how it
impacted his ability to sit and made it so he could “hardly
walk.” By the time he visited Surgeon on August 16, Torres had
stopped working due to the pain. Surgeon reviewed Torres’s X-
rays and noted “[n]o significant changes,” opining that he was
“having an acute episode of back pain” that was “likely due to a
disc abnormality.” Surgeon initially determined that Torres
would be “[u]nable to return to work” until at least August 28.
But later, after a follow-up visit on September 10, Surgeon
released Torres to return to work at “modified duty,” meaning
that he could work only four hours a day and lift no more than
ten pounds.
¶8 Torres was given another MRI scan on November 15, 2013
(the 2013 MRI), which revealed a “grade 1 disc extrusion at the
L4-[L]5 level producing mild to moderate stenosis,” 5 as well as
“neurologic impingement.” At two follow-up visits after the
2013 MRI, Surgeon noted that he had attempted to get Torres
back to work by allowing modified duty work restrictions, but
the Company had been “unable to accommodate any
restrictions.” Surgeon at first attempted to treat the 2013
Accident with physical therapy, but by December 2013 he
opined that therapy was not effectively treating Torres’s
symptoms, and recommended that Torres undergo another
5. “Spinal stenosis is a narrowing of the spaces within
your spine, which can put pressure on the nerves that
travel through the spine.” Spinal Stenosis, Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/spinal-stenosis/
symptoms-causes/syc-20352961 [https://perma.cc/UKX8-GXK3].
Herniated discs are one of the common causes of stenosis. Id.
20200210-CA 5 2021 UT App 82Graphic Packaging v. Labor Commission
discectomy (but not another fusion) at the L4-L5 level. Surgeon
also recommended that Torres “give strong consideration to
vocational retraining,” in light of the fact that his job at the
Company required “significant lifting and bending.” Surgeon
concluded that Torres’s injuries were potentially permanent, and
that Torres would be “[u]nable to return to work before . . .
[s]urgical [i]ntervention.”
¶9 Meanwhile, on November 5, 2013, Torres filed a claim for
benefits with the Commission relating to the 2011 Accident. In
his claim he sought compensation for his medical expenses,
temporary total disability benefits, permanent total disability
benefits, and unpaid interest. A few months later, in February
2014, a physician hired by the Company (Company Expert)
examined Torres and reviewed his medical records. After
completing his review, Company Expert opined that the 2013
Accident had been a “flareup” of the low back condition caused
by the “industrial” 2011 Accident and that, “[a]bsent any
evidence to the contrary,” Torres’s increased pain could
“reasonably” be considered to have been caused by the demands
of his job. While Company Expert “deferred” an ultimate
decision on Torres’s work capacity until a later date, he
concluded that Torres was able to return to work, but that he
should be restricted to lifting twenty pounds on a regular basis
and thirty-five pounds occasionally. Later, in a follow-up report,
Company Expert concluded that the 2013 Accident had caused
only a “temporary exacerbation” of the “low back condition”
caused by the 2011 Accident. He further concluded that, because
Torres had “return[ed] to baseline level of impairment,” he had
become medically stable, did not need additional surgery, and
was “able to return to work” under the same restrictions
discussed in the earlier report.
¶10 Based on Company Expert’s initial review, in March 2014
the Company sent an official job offer letter to Torres, in which it
claimed to be able to “accommodate” the work restrictions
20200210-CA 6 2021 UT App 82Graphic Packaging v. Labor Commission
identified by Company Expert. The job described in the
letter would have been a “temporary position” with “shifts of
up to 12 hours per day,” but would have met Company
Expert’s restrictions of lifting no more than twenty pounds
regularly and thirty-five pounds occasionally. Torres did not
accept the offer, telling a Company representative that Surgeon
had ordered restrictions that would not allow him to work, at
least not under those conditions, until he underwent another
surgery.
¶11 At an evidentiary hearing before the ALJ in July 2014,
Torres withdrew his claim for permanent total disability
benefits, but continued to press his other claims. The Company
resisted Torres’s claims on several grounds, asserting that the
2011 Accident had been compensable when it occurred but that
it was not the medical cause of Torres’s then-current symptoms,
and that Torres had been offered a light-duty work opportunity
but refused to take it. In September, the ALJ issued a written
ruling making certain interim findings of fact and conclusions of
law, describing the events as set forth above, but the ALJ did not
make a final decision on the merits. Instead, he referred the case
to a medical panel (the First Panel) because he perceived that
there were “conflicting medical opinions” about whether the
2013 Accident was a “temporary or permanent aggravation of
[Torres’s] permanent low back injury” from the 2011 Accident,
“what treatment [was] necessary, and whether or not [Torres
was] medically stable.” The first question the ALJ posed to the
First Panel was whether the 2013 aggravation of Torres’s low
back condition—which aggravation all medical professionals
agreed was an exacerbation (or “flareup”) of the injury caused
by the unquestionably industrial 2011 Accident—was temporary
or permanent. This question assumed that the flareup was
related to the 2011 Accident, because there were no “conflicting
medical opinions” on that point. Accordingly, the ALJ did not
ask the First Panel to opine on whether the 2013 Accident was
related to the 2011 Accident.
20200210-CA 7 2021 UT App 82Graphic Packaging v. Labor Commission
¶12 The First Panel was appointed in January 2015, but
took seventeen months to issue its report—finally offering its
first set of opinions in June 2016—and only then after two
follow-up inquiries from the ALJ as to the status of the pending
report. In its initial report, the First Panel opined that Torres’s
then-current low back condition was neither a temporary nor a
permanent aggravation of the injuries sustained in the 2011
Accident but, instead, was “an unrelated low back injury caused
by” the 2013 Accident. Torres filed a timely objection to the First
Panel’s report, asserting that the First Panel had, “without
explanation,” “omit[ted] or ignore[d] key pieces of medical
information.”
¶13 A few weeks after briefing was complete on Torres’s
objection, the ALJ asked the First Panel for further clarification
about “[w]hat effect, if any” it thought the 2011 Accident had
on the supposedly new injury that arose out of the 2013
Accident. Seven months later, in April 2017, after receiving no
response from the First Panel, the ALJ asked the panel’s chair for
an update on the status of the follow-up inquiry. Over a month
later, the First Panel finally issued its follow-up report, therein
reiterating its view that Torres’s current symptoms stemmed
from “a new low back injury at the L4-L5 level not influenced by
[the 2011 Accident] at the L5-S1 level.” (Emphasis in original.) It
explained that its reasoning was based on the assumption that
Torres’s L5-S1 injury, in its view, had “reached full stability with
maximum medical improvement” by October 2012 following
several months of recovery after surgery. By this explanation,
the First Panel appears to have assumed that the 2011
Accident involved only the L5-S1 level, and not the L4-L5 level;
however, as noted above, all other medical professionals had
previously agreed that the 2011 Accident involved both vertebral
levels.
¶14 Torres timely objected to the First Panel’s follow-up
report, requesting that the ALJ make his own findings “due to
20200210-CA 8 2021 UT App 82Graphic Packaging v. Labor Commission
the length of time” it took for the First Panel to complete its
initial and follow-up reports. “In the alternative,” Torres asked
that “a new panel be assigned to review the medical aspects of
[his] case in its entirety.” In December 2017, after full briefing on
the objection, the ALJ appointed a chair for a new medical panel
(the Second Panel) and directed him to appoint the other
members of the panel. In a subsequent ruling, the ALJ stated that
“[i]t became necessary to utilize a new panel because the
previous panel members had retired and were no longer
available to provide clarification or answer the [ALJ’s]
questions.” But at the time he appointed the new panel, the ALJ
did not mention that the members of the First Panel had retired,
stating instead that he was appointing a new panel “[b]ecause
the [First Panel had] opined that there was a new injury that
occurred in 2013, and no other physician had such an opinion.”
The ALJ posed several questions to the Second Panel: whether
Torres’s then-current low back injury was a permanent or
temporary aggravation of injuries arising out of the 2011
Accident; the exact date when the injuries from the 2011
Accident had stabilized; the necessary medical care to treat
Torres’s condition in the future; and, if it determined that the
2013 Accident caused a “new injury,” the effect that the 2011
Accident had on said new injury.
¶15 The Second Panel issued its report about six weeks later,
and opined that Torres’s then-present lower back condition was
“a permanent aggravation of his low back problems caused by
the [2011 Accident],” reasoning that it had been seven years
since the 2011 Accident and that Torres’s symptoms had
“continue[d] more or less unremitting[ly].” It also found that the
aggravation occurring from the 2013 Accident had stabilized by
September 2013. And on the fourth question, it indicated its
disagreement with the First Panel and opined that the injury
occurring from the 2013 Accident was “relatively mild and likely
represented only an aggravation of the initial injury” from the
2011 Accident.
20200210-CA 9 2021 UT App 82Graphic Packaging v. Labor Commission
¶16 Both parties objected to the Second Panel’s report, and in
response the ALJ directed three follow-up questions to the panel:
whether Torres, at the time the Company offered him the light-
duty position, “would . . . have been able to work in a full-time
position, standing up to 12 hours per day,” lifting twenty
pounds regularly and thirty-five pounds occasionally; whether
Torres’s condition could be expected to improve; and whether
consultation with a neuroradiologist (which consultation the ALJ
directed the Second Panel to undertake) would change any of
the Second Panel’s previous answers. The Second Panel
submitted a follow-up report a few weeks later, and indicated
that it had, at the ALJ’s direction, consulted with a
neuroradiologist. The Second Panel found that asking Torres to
work full-time “is reasonable with accommodations,” including
limiting his regular shifts to eight hours, limiting any lifting to
no more than thirty-five pounds, and allowing him to “alternate
positions frequently” so that he would not be required to either
stand or sit for prolonged periods. It also reiterated that Torres’s
“L4-L5 disc disease ha[d] been present and at least partially
responsible for [his] symptoms since the [2011 Accident].”
¶17 The Company timely objected to the Second Panel’s
follow-up report, requesting that the ALJ instead “admit and
rely” on the First Panel’s reports. After considering the Second
Panel’s input and both parties’ briefing in connection with the
Company’s objection, the ALJ issued his final order in the case.
In addressing the Company’s objection to the Second Panel’s
conclusions, the ALJ noted that, due to retirement, the members
of the First Panel had been “unavailable to provide clarification”
about its “prior answers” to the ALJ’s questions, and in that
respect the First Panel’s report was “incomplete.” He also noted
that the Second Panel, but not the First Panel, had enjoyed the
“benefit of” having consulted with “a lumbar MRI specialist.”
Finally, the ALJ found that the medical evidence supported the
Second Panel’s findings because a “careful review” of both the
2011 and 2013 MRIs showed that the “L4-L5 disc herniation was
20200210-CA 10 2021 UT App 82Graphic Packaging v. Labor Commission
present before the 2013 [Accident].” The ALJ also agreed with
the Second Panel that Torres “could have worked a light-duty
job,” but that Torres’s “refusal to perform light duty work was
not improper” because the position the Company offered would
have involved Torres regularly working twelve-hour shifts, and
would have only been a “temporary” position. Accordingly, the
ALJ awarded Torres temporary total disability compensation
dating back to March 2014. 6
¶18 The Company petitioned the Commission for review of
the ALJ’s decision, asserting that the ALJ had “continued to
needlessly refer the claim back for . . . new medical panels . . .
until a favorable medical panel result for [Torres] was finally
received.” It also took issue with the ALJ’s findings on the light-
duty work opportunity. The Commission found these arguments
unpersuasive, and affirmed the ALJ’s order. As to the medical
panels, the Commission found that the First Panel’s reasoning
was “incomplete” and did not sufficiently address the injuries to
the L4-L5 level of Torres’s spine, which were apparent from the
MRIs and physical exams “well before the 2013 [Accident].” And
the Commission found the Second Panel’s conclusions to be fully
“supported by the evidence in the record” and “the product of
impartial, collegial, and expert review of . . . Torres’s relevant
medical history.” As to the light-duty assignment, the
Commission agreed that the Company had not “made suitable
light-duty work available” because, although the light-duty offer
complied with the lifting restrictions given by Company Expert,
the job would have involved regular twelve-hour shifts, which
the Commission concluded made it reasonable for Torres to
reject the offer. Accordingly, the Commission affirmed the
award of temporary total disability benefits to Torres.
6. Prior to the initial July 2014 hearing, both parties stipulated
that “temporary total disability compensation ha[d] been paid
from August 13, 2013 through March 24, 2014.”
20200210-CA 11 2021 UT App 82Graphic Packaging v. Labor Commission
ISSUES AND STANDARDS OF REVIEW
¶19 The Company now seeks judicial review of the
Commission’s decision, and identifies two issues for our
consideration. First, the Company argues that it was improper
for the ALJ to appoint the Second Panel and, relatedly, that the
Commission erred by affirming the ALJ’s decision to appoint the
Second Panel. The parties present diverging views on the
appropriate standard of review to be applied in this situation.
Torres contends that the Commission’s decision to affirm the
ALJ’s appointment of a second medical panel presents a mixed
question of law and fact that “is highly fact intensive and should
be entitled to a high degree of deference.” The Company, on the
other hand, asserts that we should review this decision non-
deferentially as a mixed question that is more law-like than fact-
like, contending that the facts underlying the appointment of the
medical panels were not in dispute, and that the decision to
appoint the Second Panel was driven by the legal effect of the
undisputed facts and by interpretation of the relevant statute.
¶20 In our view, neither side has it exactly right, and both
appear to conflate deference with discretion. See Murray v. Utah
Labor Comm’n, 2013 UT 38, ¶ 33, 308 P.3d 461 (recognizing that
“‘discretion’ and ‘deference’ are distinct concepts” in appellate
review of an administrative tribunal’s decision). Whereas
deference is accorded to a tribunal’s decision on certain mixed
questions that are more fact-like than law-like, and “reflects the
idea that we, as an appellate court, are not always in the best
position to say what that ‘right’ answer is,” discretion must be
“explicitly delegated” to the agency by the legislature, and
“involves a question with a range of ‘acceptable’ answers” from
which the tribunal may choose. See id. ¶¶ 27–30, 33, 36–39.
¶21 We generally review the Commission’s decisions
regarding appointment of medical panels for abuse of discretion,
based on instructive language in the relevant statute. See, e.g.,
20200210-CA 12 2021 UT App 82Graphic Packaging v. Labor Commission
Foye v. Labor Comm'n, 2018 UT App 124, ¶ 20, 428 P.3d 26 (noting
that the governing statute “provides that an administrative law
judge generally has discretion to appoint a medical panel”);
Ernest Health, Inc. v. Labor Comm’n, 2016 UT App 48, ¶ 10, 369
P.3d 462 (“The decision to refer medical aspects of a disability
compensation case to a medical panel is generally a matter of
discretion.”). The governing statute provides that the
Commission “may refer the medical aspects” of any case
involving a claim for “disability by accident” “to a medical panel
appointed by an [ALJ].” See Utah Code Ann. § 34A-2-601(1)(a)
(LexisNexis 2019) (emphasis added). The statute’s use of the
word “may” is significant, and suggests that the legislature has
granted the Commission discretionary power over the
appointment of medical panels. See Mota v. Mota, 2016 UT App
201, ¶ 6, 382 P.3d 1080 (“[A] statute’s use of the word ‘may’
indicates a [lower tribunal’s] discretionary power, the exercise of
which we review for an abuse of discretion.”). Thus, in light of
the discretion afforded the Commission by statute, we review
the Commission’s decisions regarding appointment of medical
panels for abuse of discretion. See Utah Code Ann. § 63G-4-
403(4)(h)(i) (LexisNexis 2019) (providing that, where
“discretion” has been “delegated to the agency by statute,” an
appellate court “shall grant relief only if . . . the agency action is
. . . an abuse of [that] discretion”); see also Murray, 2013 UT 38,
¶ 23 (stating that, where the agency is afforded discretion under
statute, “we properly review the action for an ‘abuse of
discretion,’ as required by the plain language of section 63G-4-
403(4)(h)(i)”). “[A] discretionary decision involves a question
with a range of ‘acceptable’ answers, some better than others,
and the agency . . . is free to choose from among this range
without regard to what an appellate court thinks is the ‘best’
answer.” Murray, 2013 UT 38, ¶ 30. When applying this
standard, “we will reverse only if there is no reasonable basis for
the decision.” See Johnston v. Labor Comm’n, 2013 UT App 179,
¶ 15, 307 P.3d 615 (quotation simplified).
20200210-CA 13 2021 UT App 82Graphic Packaging v. Labor Commission
¶22 Second, the Company challenges the Commission’s
finding that Torres “reasonably refused” an offer for light-duty
work. Both parties agree that this was “a determination of fact,”
which we will not disturb so long as it is “supported by
substantial evidence when viewed in light of the whole record.”
Utah Code Ann. § 63G-4-403(4)(g); accord Provo City v. Utah Labor
Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242. “A decision is supported
by substantial evidence if there is a quantum and quality of
relevant evidence that is adequate to convince a reasonable mind
to support a conclusion.” Provo City, 2015 UT 32, ¶ 8 (quotation
simplified). “In conducting a substantial evidence review, we do
not reweigh the evidence and independently choose which
inferences we find to be the most reasonable.” Id. (quotation
simplified). “Instead, we defer to an administrative agency’s
findings because when reasonably conflicting views arise, it is
the agency’s province to draw inferences and resolve these
conflicts.” Id. (quotation simplified). 7
7. The Company also contends that it has presented a third issue
for our review, asserting that the Commission erred by awarding
Torres benefits for injuries from the 2013 Accident even though
Torres never filed an application for a hearing arising out of that
incident. But the Commission did not award Torres benefits for
any injuries arising out of the 2013 Accident alone, except insofar
as they were related to the 2011 Accident; rather, the
Commission found that the injuries Torres sustained following
the 2013 Accident were caused by the 2011 Accident, and the
Company—other than taking issue with the appointment of the
Second Panel—does not directly challenge this finding. At one
point in its brief, the Company does argue that the Second
Panel’s conclusions are “logically unsound and cannot be relied
upon as evidence,” but it stops short of fully developing this
argument, or even citing the “substantial evidence” standard we
apply to such findings. See Utah Code Ann. § 63G-4-403(4)(g)
(continued…)
20200210-CA 14 2021 UT App 82Graphic Packaging v. Labor Commission
ANALYSIS
I
¶23 First, the Company challenges, on several grounds, the
Commission’s decision affirming the ALJ’s appointment of the
Second Panel. We find the Company’s arguments unpersuasive,
and discern no abuse of discretion in the appointment of the
Second Panel.
¶24 The Company first argues that the governing statute
“does not authorize” the appointment of a new medical panel
after one has already been appointed, and that “the ALJ
erroneously interpreted the plain language” of the statute in
concluding otherwise. (Quotation simplified.) As noted above,
the statute at issue states that the Commission “may refer the
medical aspects of a case” involving “disability by accident” to
“a medical panel appointed by an [ALJ].” Utah Code Ann.
§ 34A-2-601(1)(a). We acknowledge the statute’s use of
(…continued)
(LexisNexis 2019). We therefore consider any “substantial
evidence” challenge to the substance of the Commission’s
ultimate determination to be inadequately briefed, see State v.
Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770 (“Briefs must contain
reasoned analysis based upon relevant legal authority. An issue
is inadequately briefed when the overall analysis of the issue is
so lacking as to shift the burden of research and argument
to the reviewing court.” (quotation simplified)), and likely
unpersuasive in any event, see Benson v. Utah Labor Comm’n, 2018
UT App 228, ¶ 8, 437 P.3d 1253 (per curiam) (“A medical panel’s
report alone may provide substantial evidence to support the
Labor Commission’s determination of medical causation.”).
Accordingly, we need not further discuss this putative third
issue.
20200210-CA 15 2021 UT App 82Graphic Packaging v. Labor Commission
the indefinite article in referring to “a medical panel.” See
id. (emphasis added). But this article does not
necessarily connote a restriction limiting the Commission
to appointment of only one medical panel. The indefinite article
“a” can mean “any,” or can be “used as a function word before a
mass noun to denote a particular type or instance.” A, Merriam-
Webster, https://www.merriam-webster.com/dictionary/a [https:
//perma.cc/J2NL-P8SW]; see also Utah Code Ann. § 68-3-12(1)(b)
(LexisNexis 2019) (stating that, regarding “the construction of a
statute in the Utah Code,” “[t]he singular includes the plural,
and the plural includes the singular”). We do not read the statute
as restrictively as the Company does, and we do not discern in
its text a command that forbids appointment of more than one
medical panel in a given case. To the contrary, the best reading
of the statute, and the one that harmonizes the entire subsection,
is the one giving the Commission discretion regarding medical
panel appointments, including the discretion to decline to
appoint one, as well as the discretion to appoint more than one
panel if necessary. See Utah Code Ann. § 34A-2-601(1)(a) (stating
that the Commission “may refer the medical aspects of a case . . .
to a medical panel” (emphasis added)). 8
8. The Commission’s discretion, as set forth in this statute, may
be constrained by administrative rule, which requires the
Commission to appoint a medical panel in certain circumstances.
See Brown & Root Indus. Service v. Industrial Comm’n, 947 P.2d 671,
677 (Utah 1997) (stating that “the Commission has discretion to
refer a case to a medical panel,” but noting that this “discretion
is limited by its own administrative rule,” which “requires the
ALJ to submit the case to a medical panel” in certain situations,
including cases where there are “conflicting medical reports”). In
this case, neither party contends that this administrative rule,
now codified as rule R602-2-2(A) of the Utah Administrative
Code, affects the outcome of this case, and both parties agree
(continued…)
20200210-CA 16 2021 UT App 82Graphic Packaging v. Labor Commission
¶25 Second, the Company argues that appointing “multiple
panels [to] review the same case confuses the purpose of the
medical panel,” correctly pointing out that the Commission is
the final decisionmaker and that medical panels are designed
only “to assist” the ALJ and the Commission “in deciding
whether medical cause has been proven.” (Quoting Price River
Coal Co. v. Industrial Comm’n, 731 P.2d 1079, 1084 (Utah 1986).) In
essence, the Company asserts that the ALJ and the Commission
treated the medical panel as a decisionmaker, rather than as an
advisory body, and appointed a new panel merely because the
ALJ did not like the First Panel’s conclusions. We disagree with
the Company’s interpretation of events. We see nothing in the
record indicating that the ALJ or the Commission viewed either
medical panel as a final decisionmaker, or that the ALJ or the
Commission misunderstood the role medical panels play in
proceedings before the Commission. To the contrary, the record
includes ample indication that the ALJ correctly understood the
advisory role of the medical panels; indeed, the ALJ asked both
panels to weigh in on medical issues upon which the other
experts’ conclusions conflicted, and asked the First Panel
clarifying questions about the conclusions set forth in its initial
report. In the end, we do not agree with the Company’s
argument that the ALJ misperceived the scope of the medical
panel’s assignment.
¶26 Third, the Company contends that, where an ALJ is
unpersuaded by the medical panel’s conclusions, the ALJ should
just make contrary findings rather than appointing a new panel.
That course of action is certainly an option for ALJs who are
unpersuaded by the conclusions reached by a medical panel. See
(…continued)
that this case did involve conflicting medical opinions (at least
on certain issues) and therefore should have been referred to at
least one medical panel.
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Ramos v. Cobblestone Centre, 2020 UT 55, ¶ 31, 472 P.3d 910(stating that ALJs “retain[] the discretion to reject the medical
panel’s recommendation”). But an ALJ may also determine,
within its discretion in appropriate cases, to appoint a second
medical panel, see supra ¶ 24, and in our view this was one of
those cases. Here, the ALJ did not appoint the Second Panel
merely because the First Panel’s “opinion differ[ed] from those
in the record,” as the Company alleges. To the contrary, the ALJ
had good reason to have been frustrated with the First Panel: it
took an unreasonably long amount of time to do its work, it
appeared to not understand that the 2011 Accident had affected
Torres at L4-L5 as well as at L5-S1, and when it finally submitted
its report it ended up answering at least one question (whether
the 2013 Accident was related to the 2011 Accident) that was not
posed and on which there had previously been no conflict in the
medical opinions. See Utah Admin. Code R602-2-2(A)(1) (setting
forth guidelines indicating that medical panels should be
utilized “where one or more significant medical issues” are
involved in the case, including situations where there exist
“[c]onflicting medical opinions related to causation of the
injury”).
¶27 Moreover, although the ALJ made no mention of the First
Panel members’ apparent retirements in his memorandum
appointing the Second Panel, in his final order the ALJ noted
that “[i]t became necessary to utilize a new panel because the
previous panel members had retired and were no longer
available to provide clarification or answer [the ALJ’s]
questions.” The Company has not disputed the ALJ’s
representation that the members of the First Panel had retired
from medical practice and were unavailable to answer further
questions or provide clarification, either in writing or at a
subsequent hearing. These facts, if true, could also serve as
sufficient justification for appointment of a new panel. See Utah
Code Ann. § 34A-2-601(2)(f)(ii)–(iii) (allowing a party to request
that the medical panel chair appear at a hearing “for
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examination and cross-examination,” and allowing the ALJ to
order that other panel members be present at said hearing “[f]or
good cause shown”).
¶28 In sum, we see no abuse of discretion in the appointment
of the Second Panel, and reject all of the Company’s arguments
to the contrary. We therefore decline to disturb the
Commission’s decision affirming the appointment of the Second
Panel.
II
¶29 The Company next challenges, as unsupported by
substantial evidence, the Commission’s determination that
Torres reasonably refused a light-duty work offer. We reject this
challenge, because there exists sufficient evidence in the record
to support the Commission’s finding.
¶30 Utah workers’ compensation law provides that, “[i]f a
light duty medical release is obtained before the employee
reaches a fixed state of recovery and no light duty employment
is available to the employee from the employer, temporary
disability benefits shall continue to be paid.” Utah Code Ann.
§ 34A-2-410(2) (LexisNexis 2019). But if a worker is cleared for
light-duty work and the employer makes such a position
available, that worker may not “choose[] for some personal
reason not to work” and still maintain eligibility for temporary
workers’ compensation benefits. See Stampin’ Up, Inc. v. Labor
Comm’n, 2011 UT App 147, ¶¶ 9–10, 256 P.3d 250.
¶31 The Company correctly points out that, in early 2014,
Company Expert had cleared Torres for light-duty work as long
as Torres was restricted to lifting twenty pounds on a regular
basis and thirty-five pounds occasionally, and that in March
2014 the Company offered Torres a temporary light-duty
position that accommodated the lifting restrictions identified by
Company Expert. The light-duty position offered, however,
20200210-CA 19 2021 UT App 82Graphic Packaging v. Labor Commission
would have involved “shift[s] of up to 12 hours per day.” And
the experts’ recommendations were not unanimous: as noted
above, Surgeon had initially released Torres to return to work in
September 2013 at “modified duty,” meaning that he could work
only four hours a day and lift no more than ten pounds, but a
few months later opined that Torres’s injuries were potentially
permanent, and that Torres would be “[u]nable to return to
work” at least until additional “[s]urgical [i]ntervention” had
been attempted.
¶32 Against this backdrop of conflicting medical advice,
Torres declined the Company’s offer of light-duty work,
specifically citing Surgeon’s recommendations as the reason. The
question posed to the ALJ and the Commission was whether
Torres’s refusal to accept the Company’s light-duty position was
reasonable under the circumstances. The ALJ found that it was,
but relied in part on the Second Panel’s conclusions, issued years
after Torres had already refused the Company’s light-duty work
offer. In 2018, the Second Panel specifically concluded that
Torres could return to work as long as accommodations were
made, including limiting his shifts to eight hours, limiting any
lifting to no more than thirty-five pounds, and allowing him to
“alternate positions frequently” so that he would not be required
to either stand or sit for prolonged periods. The ALJ noted that
the offered position would have required Torres to work twelve-
hour shifts, and largely on that basis found that Torres’s refusal
to accept the light-duty position was “not improper.” The
Commission affirmed that finding, also expressing concern
about the potential twelve-hour shifts and ultimately concluding
that Torres “did not unreasonably refuse [the Company’s] offer
of light-duty work.”
¶33 The Company assails the Commission’s finding,
specifically taking issue with the Commission’s and the ALJ’s
reliance on the Second Panel’s report, which had not yet been
issued when Torres refused the light-duty work offer. We take
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the Company’s point, and emphasize that the reasonableness of
Torres’s decision should be analyzed in light of the information
Torres had at his disposal at the time he declined the light-duty
work offer. Cf. Sawyer v. Department of Workforce Services, 2015 UT
33, ¶¶ 29–30, 345 P.3d 1253 (noting that analysis of whether an
employee had “good cause to quit” a job must be undertaken
based “on what the claimant in fact knew and reasonably should
have known” when making the decision (quotation simplified)).
¶34 But even if we do not consider the Second Panel’s
conclusions, there remains substantial evidence to support the
Commission’s finding that Torres’s decision was reasonable. In
particular, Surgeon’s recommendation that Torres not return to
work until after an additional surgical procedure had been
attempted is, by itself, sufficient evidence to support the
Commission’s finding. Torres specifically cited this medical
advice as the reason why he declined the Company’s offer, and
following the advice of one’s treating physician can certainly be
considered reasonable. Furthermore, the Company intended for
the offered position to be only temporary, meaning that there
would be no guarantee that any light-duty position would be
available after Torres underwent a second surgery—something
that also factored into the ALJ’s decision assessing the
reasonableness of Torres’s refusal. “Substantial evidence is more
than a mere scintilla of evidence though something less than the
weight of the evidence, and the substantial evidence test is met
when a reasonable mind might accept as adequate the evidence
supporting the decision,” see Wright v. Labor Comm’n, 2021 UT
App 43, ¶ 26 (quotation simplified), petition for cert. filed, June 16,
2021 (No. 20210419), and a reasonable mind could certainly view
these rationales as adequately supporting Torres’s refusal.
¶35 Thus, we conclude that the Commission’s determination
that Torres reasonably refused the Company’s light-duty work
offer was based on substantial evidence, and on that basis we
decline to disturb it. Accordingly, Torres’s refusal cannot serve
20200210-CA 21 2021 UT App 82Graphic Packaging v. Labor Commission
as grounds for the Company to decline to pay him temporary
workers’ compensation benefits following the refusal.
CONCLUSION
¶36 The Commission did not abuse its statutorily conferred
discretion by referring Torres’s case to the Second Panel after the
First Panel took an inordinately long time to answer the ALJ’s
questions and was ultimately not able to respond, to the
satisfaction of the ALJ, before its members retired from medical
practice. And the Commission’s determination that Torres
reasonably refused the Company’s light-duty work offer was
supported by substantial evidence. Accordingly, we decline to
disturb the Commission’s award of temporary total disability
benefits to Torres.
20200210-CA 22 2021 UT App 82