Bhatia v. Retirement Board, Longterm Disability Program

2013 UT App 103_________________________________________________________
THE UTAH COURT OF APPEALS
PARWINDER BHATIA,
Petitioner,
v.
RETIREMENT BOARD,
LONG‐TERM DISABILITY PROGRAM,
Respondent.
Opinion
No. 20120096‐CA
Filed April 25, 2013
Original Proceeding in this Court
David J. Holdsworth, Attorney for Petitioner
David B. Hansen, Liza J. Eves, and Erin L. Gill,
Attorneys for Respondent
JUDGE CAROLYN B. MCHUGH authored this Opinion, in which
JUDGES JAMES Z. DAVIS and STEPHEN L. ROTH concurred.
McHUGH, Judge:
¶1 Petitioner Parwinder Bhatia petitions for review of the Utah
State Retirement Board’s (the Board) decision denying his claim for
ongoing permanent disability benefits under the Utah Public
Employees’ Long‐Term Disability Act (the Act). See Utah Code
Ann. §§ 49‐21‐101 to ‐406 (LexisNexis 2007 & Supp. 2009).1 We
decline to disturb the Board’s ruling.
1. Unless otherwise noted, we cite the version of the Utah Code
that was in effect in 2009 when Mr. Bhatia filed his claim for long‐
term disability benefits.
Bhatia v. Retirement Board
BACKGROUND
¶2 Mr. Bhatia worked for the Utah State Department of
Administrative Services as a mail clerk for approximately seven
years. In April 2007, Mr. Bhatia was injured when a coworker
rolled a chair that struck him in the back. Due to this injury, Mr.
Bhatia stopped working in May 2007 and filed for long‐term
disability benefits. The Long‐Term Disability Program (LTD
Program) granted Mr. Bhatia a two‐year long‐term disability
benefit because Mr. Bhatia was unable to perform his duties as a
mail clerk. When Mr. Bhatia’s two‐year disability benefit ended in
July 2009, he filed for ongoing permanent total disability benefits.
The LTD Program denied Mr. Bhatia’s request, citing his failure to
provide objective medical documentation showing that he was
totally or permanently disabled from all gainful employment. The
executive director of the Utah Retirement Systems formally denied
Mr. Bhatia’s application on May 13, 2010. Mr. Bhatia sought review
by a Hearing Officer.
¶3 After the hearing, the Hearing Officer instructed each party
to draft proposed findings of fact, conclusions of law, and orders.
In January 2012, the Hearing Officer adopted the LTD Program’s
proposed findings of fact, conclusions of law, and order denying
Mr. Bhatia’s claim because it “more accurately set forth the
persuasive and convincing evidence elicited at the hearing . . . .” On
review, the Board adopted the Hearing Officer’s decision as the
order of the Board and denied Mr. Bhatia’s claim for ongoing total
disability benefits.2 Mr. Bhatia timely petitioned for judicial review.
2. Mr. Bhatia was eligible for and received Social Security Disability
Insurance (SSDI) benefits from November 2007 until January 2012.
When he first accepted those benefits, Mr. Bhatia signed an
agreement acknowledging that he understood that if he, his
spouse, or dependent children were awarded SSDI benefits, his
monthly LTD Program benefit would be offset and he would be
(continued...)
20120096‐CA 2 2013 UT App 103Bhatia v. Retirement Board
ISSUES AND STANDARDS OF REVIEW
¶4 Mr. Bhatia first argues that the Board’s finding that he failed
to demonstrate total disability is not supported by substantial
evidence. When reviewing an agency’s decision, “this court may
grant relief if ‘it determines that a person seeking judicial review
has been substantially prejudiced by . . . a determination of fact,
made or implied by the agency, that is not supported by substantial
evidence when viewed in light of the whole record before the
court.’” Bailey v. Retirement Bd., 2012 UT App 365, ¶ 2, 294 P.3d 577(mem.) (quoting Utah Code Ann. § 63G‐4‐403(4)(g) (LexisNexis
2011)). “A finding is supported by substantial evidence when a
reasonable mind might accept as adequate the evidence supporting
the decision.” Id. (citation and internal quotation marks omitted).
¶5 Next, Mr. Bhatia contends that the Board misinterpreted and
misapplied the Act in concluding that he did not show total
disability. “[W]e review the Board’s application or interpretation
of a statute as a question of law under the correction‐of‐error
standard.” McLeod v. Retirement Bd., 2011 UT App 190, ¶ 9, 257 P.3d
1090 (alteration in original) (citation and internal quotation marks
omitted); see also Utah Code Ann. § 63G‐4‐403(4)(d) (explaining that
this court may grant relief if an agency has “erroneously
interpreted or applied the law”).
2. (...continued)
required to repay the LTD Program in a lump sum from the award
of retroactive SSDI benefits. Because Mr. Bhatia and his dependent
received SSDI benefits during the same period of time he received
benefits from the LTD Program and that amount was not offset, the
Board also ordered Mr. Bhatia to pay the LTD Program for the
overpayment plus interest. See Utah Code Ann. § 49‐21‐402(2)
(LexisNexis 2007). Mr. Bhatia has not petitioned for review of that
aspect of the Board’s order.
20120096‐CA 3 2013 UT App 103Bhatia v. Retirement Board
ANALYSIS
I. Substantial Evidence
¶6 The Act provides disability benefits to “eligible
employee[s]” who have a “total disability.” See Utah Code Ann. §
49‐21‐401(4) (LexisNexis Supp. 2009). During the first two years of
disability benefits, “‘[t]otal disability’ . . . means the complete
inability, due to objective medical impairment, whether physical or
mental, to engage in the eligible employee’s regular occupation . .
. .” Id. § 49‐21‐102(11)(a) (LexisNexis 2007). We recently explained
in Bailey v. Retirement Board, 2012 UT App 365, 294 P.3d 577 (mem.),
that the definition of total disability narrows in two ways after the
first twenty‐four months of disability benefits. Id. ¶ 3. First, the Act
defines “total disability” as “the complete inability . . . to engage in
any gainful occupation which is reasonable, considering the eligible
employee’s education, training, and experience.”3 Utah Code Ann.
§ 49‐21‐102(11)(b). Second, total disability is determined “based
solely on physical objective medical impairment.” Id. “Objective
medical impairment” is defined to mean “an impairment resulting
from an injury or illness which is diagnosed by a physician and
which is based on accepted objective medical tests or findings
rather than subjective complaints.” Id. § 49‐21‐102(6). Interpreting
these provisions, we have explained that after the first twenty‐four
month period, a state employee has a total disability “only if [the
employee] is (1) completely unable to engage in any reasonable
gainful occupation (2) based solely on physical impairment (3)
diagnosed from objective medical tests or findings and not
3. The Utah Legislature has since changed this definition of “total
disability.” The current version of section 49‐21‐102(11)(b) explains
that total disability after the first twenty‐four months of benefits is
determined “based solely on physical objective medical
impairment, and . . . regardless of the existence or absence of any
mental impairment.” Utah Code Ann. § 49‐21‐102(11)(b)(ii)
(LexisNexis Supp. 2012).
20120096‐CA 4 2013 UT App 103Bhatia v. Retirement Board
subjective complaints.” Bailey, 2012 UT App 365, ¶ 4. The employee
bears the burden of proving that he has a disability that qualifies
under the Act. See Utah Code Ann. § 49‐11‐613(4) (LexisNexis
Supp. 2009) (“The moving party in any proceeding brought under
this section shall bear the burden of proof.”); Bailey, 2012 UT App
365, ¶ 4.
¶7 In this case, the Board found that Mr. Bhatia had not met his
burden of proving he is entitled to long‐term disability payments.
Mr. Bhatia asserts that the Board’s findings of fact are not
supported by substantial evidence. Specifically, Mr. Bhatia contests
the Hearing Officer’s reliance on (1) the testimony of the LTD
Program’s medical advisor, Dr. Matthew Rondina, (2) the
functional capacity evaluation (FCE) and testimony of a physical
therapist, Dell Felix, and (3) the testimony of a licensed vocational
counselor, Byron Hall. In assessing Mr. Bhatia’s claim that the
findings are not supported by substantial evidence, we review the
record as a whole, bearing in mind that “‘[i]t is the province of the
[administrative board], not appellate courts, to resolve conflicting
evidence, and where inconsistent inferences can be drawn from the
same evidence, it is for the [b]oard to draw the inferences.’”
EAGALA, Inc. v. Department of Workforce Servs., 2007 UT App 43,
¶ 16, 157 P.3d 334 (quoting Grace Drilling Co. v. Board of Review of
the Indus. Comm’n, 776 P.2d 63, 68 (Utah Ct. App. 1989)).
¶8 The Board found that Dr. Rondina’s conclusion “as to
whether Mr. Bhatia met the definition of total disability . . . is
persuasive that there is insufficient evidence to support Mr.
Bhatia’s claim that he is totally disabled given his objective medical
impairments.” Mr. Bhatia argues that the Board erred in relying on
this opinion because Dr. Rondina did not examine or interview
him, did not consult with his treating physicians, and considered
only his degenerative disc disease, thereby ignoring the impact of
his other medical conditions. In addition, Mr. Bhatia asserts that
Dr. Rondina did not understand or apply the correct standard for
determining whether the “eligibility criteria” for continued long‐
term disability benefits had been met.
20120096‐CA 5 2013 UT App 103Bhatia v. Retirement Board
¶9 Contrary to Mr. Bhatia’s contentions, the Board properly
considered Dr. Rondina’s opinion. Dr. Rondina reported that his
opinion was based on a full and thorough review of Mr. Bhatia’s
medical records. Dr. Rondina further explained that he has worked
as an independent contractor for the LTD Program for the last five
or six years and that he is familiar with the statutory standard for
granting long‐term disability benefits. Despite the fact that Dr.
Rondina recommends granting disability benefits in more than
seventy‐five percent of the approximately twenty‐five cases he
reviews each month, he concluded that Mr. Bhatia did not satisfy
the statutory standard. According to Dr. Rondina, “[t]he most
recent records would suggest [Mr. Bhatia] is capable of at least light
work” and the records “do not provide sufficient objective
evidence of disability from all gainful occupations.” Despite Mr.
Bhatia’s argument to the contrary, Dr. Rondina also testified that
he considered Mr. Bhatia’s degenerative disc disease, as well as his
other medical history and conditions. Although Dr. Rondina
acknowledged that he did not personally interview or examine Mr.
Bhatia, Mr. Bhatia has pointed us to no authority for the
proposition that the Board cannot rely on an opinion based solely
on a review of the medical records. Furthermore, the Board
determined that the “objective medical documentation does not
support a finding of total physical disability,” noting that Dr.
Rondina’s opinion was consistent with reports from other medical
providers. For example, two of Mr. Bhatia’s treating physicians
released Mr. Bhatia to light duty work.
¶10 Mr. Bhatia also challenges the Board’s reliance on Mr. Felix’s
testimony regarding his “functional capacity” on the ground that
it is based on a flawed methodology. Based on the FCE, Mr. Felix
opined that Mr. Bhatia qualified for the “light‐medium physical
demand characteristic” work category. Mr. Bhatia claims that the
Board should have followed the Social Security Administration’s
(SSA) Administrative Law Judge’s (ALJ) rejection of Mr. Felix’s
evaluation as unreliable.
20120096‐CA 6 2013 UT App 103Bhatia v. Retirement Board
¶11 Mr. Felix, a physical therapist with thirty‐five years of
experience, testified that he reached his conclusion that Mr. Bhatia
qualified for light‐medium physical demand characteristic work
after he tested Mr. Bhatia for three to four hours. Mr. Felix’s FCE
included an intake interview to establish Mr. Bhatia’s medical
history and background, a physical examination, and a series of
tests. The evaluation assessed Mr. Bhatia’s strength, dexterity, and
tolerance for different activities, including walking, sitting, and
standing. Mr. Felix testified that, among other things, Mr. Bhatia
could sit and stand for up to sixty minutes and therefore had the
ability to do a light, sedentary job. Indeed, Mr. Bhatia’s interview
responses concerning his own abilities were consistent with Mr.
Felix’s conclusions.
¶12 Despite Mr. Bhatia’s contrary position, the Board was not
bound by the SSA’s assessment of Mr. Felix’s opinion. Unlike in the
SSA proceedings, Mr. Felix actually testified before the Hearing
Officer. Thus, the Board had the benefit of Mr. Felix’s explanation
of his opinion and his response to the concerns raised in the SSA
proceedings. Additionally, Mr. Bhatia’s own testimony describing
his capabilities was consistent with Mr. Felix’s conclusions and the
opinion of Mr. Bhatia’s treating physicians. For example, Dr. Jeff
Chung’s contemporaneous medical notes indicate, “I believe there
is reasonably definitive proof that Mr. Bhatia as of 6‐29‐07 had the
capability of performing light‐duty work.” Due to the Hearing
Officer’s advantaged position, we defer to his assessment of the
weight to give Mr. Felix’s testimony. Cf. Pender v. Department of
Workforce Servs., 2011 UT App 79, ¶ 3, 250 P.3d 1014 (per curiam)
(“This court will defer to the factual findings of the ALJ when there
is conflicting evidence as the ALJ is in the best position to judge the
credibility of witnesses.”).
¶13 Next, Mr. Bhatia challenges the Board’s reliance on Mr.
Hall’s testimony. After explaining his qualifications as a vocational
counselor, Mr. Hall testified that Mr. Bhatia could perform all the
physical requirements of several job titles. Mr. Bhatia argues that
Mr. Hall located isolated jobs which required skills that Mr. Bhatia
20120096‐CA 7 2013 UT App 103Bhatia v. Retirement Board
did not possess, including fluency in English and proficiency with
computers, and that he failed to analyze whether Mr. Bhatia
realistically could be hired for and retain those positions.
¶14 The record reflects that Mr. Hall took into account Mr.
Bhatia’s experience, skills, and physical limitations, and assumed
that Mr. Bhatia would need accommodations of no lifting or
carrying above ten pounds, the ability to alternate between sitting,
standing, and walking, and no twisting or bending. Nevertheless,
Mr. Hall’s employability report identified nine potential positions
for Mr. Bhatia with details on each job’s requirements, physical
demands, salary, and openings. Although Mr. Bhatia was free to
point out any deficiencies in Mr. Hall’s report, the Board could give
it as much weight as it deemed appropriate. See Drake v. Industrial
Comm’n, 939 P.2d 177, 181 (Utah 1997) (“We give deference to the
initial decision maker on questions of fact because it stands in a
superior position from which to evaluate and weigh the evidence
and assess the credibility and accuracy of the witnesses’
recollections.”). Moreover, the Board’s findings were also based on
testimony from Mr. Bhatia that was consistent with Mr. Hall’s
conclusions. For example, Mr. Bhatia testified that he speaks and
mostly understands English and that he had worked for computer
companies testing the quality of computers.
¶15 Additionally, Mr. Bhatia contends that the Board erred by
giving too much weight to the opinions of the LTD Program’s
experts and by not giving enough weight to the opinions of his
treating physicians. In support, he urges this court to adopt the
treating physician rule employed by the SSA in evaluating
disability claims. The SSA “will generally ‘give more weight to
opinions from . . . treating sources’ and ‘will always give good
reasons in [its] notice of determination or decision for the weight
[it gives the] treating source’s opinion.’” Black & Decker Disability
Plan v. Nord, 538 U.S. 822, 829 (2003) (omission in original) (quoting
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (2002)).
20120096‐CA 8 2013 UT App 103Bhatia v. Retirement Board
¶16 After briefing was completed in this case, we rejected a
similar argument in Bailey v. Retirement Board, 2012 UT App 365,
294 P.3d 577 (mem.). There, we observed that “unlike the
Commissioner of the [SSA], the Utah State Retirement Board has
not adopted regulations approving and formalizing use of the rule
in the [agency’s] disability program.” Id. ¶ 12 (second alteration in
original) (citation and internal quotation marks omitted). We
further indicated that the rule “has not attracted universal
adherence outside the Social Security context.” Id. (citation and
internal quotation marks omitted). Finally, we reasoned that
embracing the rule would be inconsistent with “our own supreme
court[’s rejection of] a version of the rule in the workers’
compensation context . . . .” Id. (citing Rushton v. Gelco Express, 732
P.2d 109, 111 (Utah 1986)).
¶17 In sum, Mr. Bhatia has not demonstrated “‘that despite the
supporting facts, . . . the findings are not supported by substantial
evidence.’” EAGALA, Inc. v. Department of Workforce Servs., 2007 UT
App 43, ¶ 15, 157 P.3d 334 (omission in original) (quoting Grace
Drilling Co. v. Board of Review of the Indus. Comm’n, 776 P.2d 63, 68
(Utah Ct. App. 1989)). And because “[i]t is the province of the
[administrative board], not appellate courts, to resolve conflicting
evidence,” see id. ¶ 16 (citation and internal quotation marks
omitted), the Board did not err when it weighed the conflicting
evidence in favor of the LTD Program’s experts. Accordingly, we
conclude that the Board’s finding that Mr. Bhatia is not totally
disabled and “is able to perform gainful employment” is supported
by substantial evidence.4
4. Mr. Bhatia also argues that the Board’s and the Hearing Officer’s
findings of fact are inadequate because the Hearing Officer did not
articulate why he found the other experts more persuasive.
However, the Hearing Officer supported his ultimate finding that
Mr. Bhatia “is able to perform gainful employment” with several
subsidiary findings, including that Dr. Rondina’s medical opinion
(continued...)
20120096‐CA 9 2013 UT App 103Bhatia v. Retirement Board
II. Total Disability Under the Act
¶18 Mr. Bhatia makes two statutory arguments asserting that the
Board misinterpreted the Act. First, Mr. Bhatia contends that the
Act does not require him to prove “total disability” by objective
medical evidence; rather, he argues that he was required to prove
only the fact of “impairment” by objective medical evidence.
According to Mr. Bhatia, the Board could consider his subjective
reports and complaints in determining “total disability.” As with
any statutory interpretation, we begin by analyzing the plain
language because “[t]he best evidence of the legislature’s intent is
the plain language of the statute itself.” Summit Operating, LLC v.
Utah State Tax Comm’n, 2012 UT 91, ¶ 11, 293 P.3d 369 (alteration in
original) (citation and internal quotation marks omitted).
¶19 The Act provides, “If the office determines that the eligible
employee is totally disabled . . . , the eligible employee shall receive
a monthly disability benefit . . . for each month the total disability
continues . . . .” Utah Code Ann. § 49‐21‐401(4) (LexisNexis Supp.
2009). “Total disability” after the first twenty‐four months of
benefits is then defined as “the complete inability, based solely on
physical objective medical impairment, to engage in any gainful
occupation which is reasonable, considering the eligible employee’s
education, training, and experience.” Id. § 49‐21‐102(11)(b)
(LexisNexis 2007). The Act plainly explains that an employee is
totally disabled when he has the “complete inability” to work, and
4. (...continued)
and Mr. Felix’s functional capacity conclusions were persuasive. In
addition, the Hearing Officer identified the objective medical
documentation and Mr. Bhatia’s testimony regarding his
education, training, and experience as support for his findings. The
basis for the Board’s decision is therefore apparent, and the
findings provide adequate detail to allow us to review the
sufficiency of the evidence supporting those findings. See Bailey v.
Retirement Bd., 2012 UT App 365, ¶¶ 14–16, 294 P.3d 577 (mem.).
20120096‐CA 10 2013 UT App 103Bhatia v. Retirement Board
that “complete inability” is determined by evidence of “physical
objective medical impairment.”
¶20 Contrary to Mr. Bhatia’s argument, the statute requires the
claimant to demonstrate his complete inability to work by proving
“physical objective medical impairment.” See id. § 49‐21‐102(11)(b).
In turn, section 49‐21‐102(6) limits “objective medical impairment”
to impairment “based on accepted objective medical tests or
findings rather than subjective complaints.” Id. § 49‐21‐102(6).
Thus, the plain language of the statute provides LTD Program
benefits only where objective medical tests or findings establish
that the claimant is completely unable to engage in any gainful
employment. See Hilton v. State Retirement Bd., 2005 UT App 408U,
para. 2 (mem.) (“Not every impairment or disability qualifies a
state employee for benefits under the Act . . . .”). Accordingly, the
Board did not misinterpret the Act’s definition of “total disability”
when it denied Mr. Bhatia’s claim for ongoing permanent disability
benefits.
¶21 Second, Mr. Bhatia argues that the Act does not require him
to show that he cannot work at all. Instead, he argues that the
statute requires him to show only that “he cannot perform the type
of work that is suitable for him.” According to Mr. Bhatia,
suitability is measured by the likelihood that he will be hired and
can succeed in an occupation, considering his age, education,
training, experience, and other vocational factors.
¶22 Again the plain language of the Act belies Mr. Bhatia’s
argument. It instructs the Board to determine whether an employee
is unable “to engage in any gainful occupation which is reasonable,
considering the eligible employee’s education, training, and
experience.” See Utah Code Ann. § 49‐21‐102(11)(b) (emphasis
added). Nothing in this statute requires the Board to speculate as
to whether an employer would actually hire Mr. Bhatia or the
likelihood that he would be retained in the position. The Board
properly considered Mr. Hall’s testimony that “based on Mr.
Bhatia’s education, work experience, transferable skills, physical
20120096‐CA 11 2013 UT App 103Bhatia v. Retirement Board
and residual limitations . . . [, and] his current age of 51, [Mr.
Bhatia] could perform all the physical requirements of” the jobs
reviewed in Mr. Hall’s report. It also relied on Mr. Bhatia’s
testimony that he had been continuously employed from 1992 to
2007, that he had held numerous job titles based on his educational
background, that he has developed specialized skills due to the
various jobs, and that he is able to understand and speak English.
We conclude that the Board properly interpreted the statute when
it reached its conclusion that Mr. Bhatia “is able to perform gainful
employment.”
CONCLUSION
¶23 Mr. Bhatia has failed to demonstrate that the Board’s finding
that he was not totally disabled was unsupported by substantial
evidence. The Board did not err in interpreting or applying the Act.
We therefore decline to disturb the Board’s decision.
20120096‐CA 12 2013 UT App 103