Right Way Trucking Inc. v. Labor Commission

2015 UT App 210THE UTAH COURT OF APPEALS
RIGHT WAY TRUCKING, LLC AND WORKERS’
COMPENSATION FUND,
Petitioners,
v.
LABOR COMMISSION AND JAMES EACHO,
Respondents.
Opinion
No. 20140552-CA
Filed August 20, 2015
Original Proceeding in this Court
Eugene C. Miller Jr., Attorney for Petitioners
T. Jeffery Cottle, Attorney for Respondent
James Eacho
Jaceson R. Maughan, Attorney for Respondent
Labor Commission
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.
ROTH, Judge:
¶1 Right Way Trucking LLC (Employer) seeks judicial
review of a decision by the Utah Labor Commission (the
Commission) denying Employer’s motion for reconsideration
and affirming the order of an administrative law judge related to
a workers’ compensation claim. We decline to disturb the
Commission’s decision.
BACKGROUND
¶2 James Eacho (Employee) worked for Employer as a truck
driver. In July 2012, Employee returned to his home in Pleasant
Right Way Trucking, LLC v. Labor Commission
Grove, Utah, at around 9:30 p.m. after a multi-day assignment
that took him through Oregon, Idaho, and Washington. During
the trip he made several deliveries of heavy bathroom fixtures
such as showers and tubs. On the last day, he made two
deliveries that required him to move several tubs and showers
from inside the truck trailer to its tailgate while the outside
temperature was as high as 98 degrees, and the temperature
inside the trailer was as high as 120 degrees. Upon his return
home, Employee became ill and his wife took him to the hospital
the next day. He was diagnosed with acute sepsis with shock. He
remained hospitalized for the next month. Upon discharge, his
final diagnoses were septic shock, acquired pneumonia,
cardiogenic shock, probable heat stroke, renal failure, cerebral
infarct, and encephalopathy.
¶3 Employee filed a claim for workers’ compensation
benefits. In support of the claim, he submitted the statement of a
physician who opined that Employee had ‚suffered from
dehydration/heat illness due to his employment activities . . .
and that the work activities likely created a medical causal
relationship between the septic shock, acquired pneumonia,
cardiogenic shock, probable heat stroke, renal failure, cerebral
infarct, and encephalopathy.‛ Employer’s independent medical
examiner (the IME), however, opined that the ‚primary cause of
*Employee’s+ life threatening illness of July 2012 was the
streptococcal infection in his blood stream.‛ The IME also stated
that the source of the streptococcal infection was ‚unknown‛
and that Employee’s ‚intense work schedule just prior to the
infection may have made [Employee] more susceptible to this
infection but did not cause the infection.‛
¶4 After entering interim findings of fact and conclusions of
law, the Administrative Law Judge (the ALJ) referred the matter
to a two-member medical panel. The question submitted to the
panel was ‚Did *Employee’s+ July 20, 2012 work activities
aggravate, light up, accelerate, or in any way contribute with the
streptococcal infection to enhance *Employee’s+ medical
condition?‛ The directions to the medical panel contained this
statement from the ALJ:
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[Y]ou are bound by the Findings of Fact and
Conclusions of Law contained in my Interim
Order. . . . If you discover additional facts which
are not contrary to the facts in the Findings of Fact
and Conclusions of Law contained in my Interim
Order, and you use them in your examination and
evaluation, it will be necessary to include them in
your report and explain how the additional facts
affected your analysis and conclusions.
The medical panel’s subsequent report to the ALJ concluded, ‚It
is medically reasonable that [Employee] developed a form of
heat stress and possible heat stroke, which triggered a systemic
inflammatory response which allowed streptococcus, a normal
gut flora, to enter his blood stream which caused his sepsis.‛ The
medical panel included in its report a summary of the interviews
with Employee and his wife that each panel-physician
conducted as part of the examination.
¶5 Employer filed an objection to the medical panel report
and requested an objection hearing. Employer argued that by
including the summary of the interviews with Employee and his
wife, the panel deviated from the ALJ’s interim order. Employer,
as explained by the ALJ, contended that those oral histories
‚omitted facts, added facts, *and+ altered facts,‛ making the
medical panel’s report unreliable. Employer also submitted a
written response from the IME that stated:
I disagree with the conclusion by [the medical
panel] that heat related illness caused ‚leaky‛ gut,
that in turn lead to bacteremia. To my knowledge,
heat related illness does not typically cause
bacteremia. In addition, group A streptococcus is
not considered a normal gut flora. As stated in my
initial report dated January 25th 2013, heat related
illness may have made [Employee] more
susceptible to infection but did not cause his illness
per se.
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¶6 The ALJ rejected Employer’s objections and denied its
request for an objection hearing. The ALJ explained that the
differences in the oral histories submitted by the medical panel
and the findings of fact in the ALJ’s interim order were ‚very
minor and have little bearing on the medical panel’s
determination.‛ The ALJ also concluded that the IME’s response
to the report did not constitute new evidence. Accordingly, the
ALJ admitted the medical panel’s report into evidence.
¶7 Employer filed a motion for review with the Commission
contending that the ALJ violated Employer’s right to due process
by admitting the medical panel’s report into evidence and
abused her discretion by denying its request for an objection
hearing. The Commission affirmed the ALJ’s decision. Employer
then filed a motion for reconsideration in which it asked the
Commission to send the following question to the medical panel:
‚[D]id you rely solely on the facts set forth in the *ALJ’s+ Interim
Order? If not, please explain what additional facts you relied on
in rendering your opinion.‛ Employer also requested that the
IME’s response to the medical panel report be sent to the
medical panel for comment. The Commission denied Employer’s
motion and the request to send Employer’s question or the IME’s
response to the medical panel. Employer seeks judicial review of
the Commission’s final order.
ISSUES
¶8 Employer argues that the Commission abused its
discretion in affirming the ALJ’s denial of Employer’s request for
an objection hearing, by failing to send the IME’s response to the
medical panel for further comment, and by refusing to send
Employer’s proposed question to the panel.
ANALYSIS
¶9 Employer’s arguments distill into two main issues: (1) the
propriety of the admission of the medical panel’s report into
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evidence and (2) whether the statement made by the IME in
response to the medical panel’s report constituted new evidence
that should have been considered by the ALJ. We conclude that
the ALJ did not abuse her discretion in admitting the medical
panel’s report into evidence and, as a result, that the
Commission did not abuse its discretion in affirming that
decision. We also conclude that the Commission abused its
discretion in refusing to query the medical panel about whether
it considered only the facts set out in the Interim Order. We
further conclude that the IME’s response to the medical panel’s
report did not constitute new evidence requiring either an
objection hearing or submission to the medical panel.
I. Admission of the Medical Panel’s Report into Evidence
¶10 Employer argues the ALJ abused her discretion, as did the
Commission in affirming the ALJ’s decision, in admitting the
medical panel’s report into evidence. After a medical panel has
completed its report, ‚if a written objection to the report is filed
. . . the administrative law judge may set the case for hearing to
determine the facts and issues involved.‛ Utah Code Ann. § 34A-
2-601(2)(f)(i) (LexisNexis Supp. 2013). An ALJ’s decision whether
to admit a medical panel report into evidence or to hold an
objection hearing is entirely discretionary, and we will provide
relief only when ‚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). Accordingly, we consider whether a reasonable basis
for the ALJ’s decision to deny Employer’s request for an
objection hearing, and the Commission’s subsequent affirmance
of that decision, is apparent from the record. See id.A. The ALJ’s Decision to Receive the Medical Panel Report
Without an Objection Hearing Was Within Her
Discretion.
¶11 After the medical panel submitted its report, Employer
filed an objection to its admission into evidence. Alternatively,
Employer requested a hearing. Employer contended that the
20140552-CA 5 2015 UT App 210Right Way Trucking, LLC v. Labor Commission
medical panel ‚did not rely on the stipulated facts that were in
the *i+nterim *o+rder‛ as it had been instructed to do. Employer
also argued that the report was ‚completely unreliable‛ because,
due to the inclusion of the medical histories, the panel
improperly relied on ‚several omitted facts, added facts, and
altered facts‛ that differed from those found in the interim order.
Employer argued that it was ‚inappropriate for a medical panel
to substitute its own factual findings in lieu of an administrative
law judge’s findings.‛
¶12 The ALJ denied Employer’s request for a hearing and
admitted the medical panel’s report into evidence. The ALJ
explained, ‚*T+he medical panel relied on facts identical to those
relied upon by *Employee’s+ treating physician and *Employer’s]
own expert. The differences [Employer] point[s] to . . . are very
minor and have little bearing on the medical panel’s
determination, given the medical reasoning used by the panel.‛
She concluded, ‚As a result, [Employee’s] objections that the
medical panel relied on facts provided by *Employee’s+ wife and
the medical panel relied on additional or omitted facts are not
persuasive and are therefore dismissed.‛ We conclude the ALJ
did not abuse her discretion in admitting the report into
evidence without holding an objection hearing.
¶13 Medical panels act within their charge by taking oral
histories and including them in their reports. See Danny’s
Drywall v. Labor Comm’n, 2014 UT App 277, ¶¶ 19–21, 339 P.3d
624 (‚*A+ medical panel may conduct its own medical
examination and review of the medical record. This court has
therefore allowed Commission decisions to stand where the
medical panel conducted its own examination and interview of
the claimant.‛ (citation and internal quotation marks omitted)).
And we have previously considered a challenge by an employer
‚that the medical panel improperly considered extra-record
evidence‛ in the context of an identical instruction from the ALJ
that the medical panel explain the impact of any additional
consistent facts on its conclusions. Id. ¶¶ 3, 20. In that case, we
concluded that because ‚*t+he medical panel report expressly
noted information that originated from statements made by [the
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employee’s+ family members during the panel’s examination,‛
‚the medical panel complied with the ALJ’s instruction that it
include in its report any ‘additional facts which are not contrary
to the facts in the Findings of Fact and Conclusions of Law
contained in *her+ Interim Order’ that the panel used in its
examination and evaluation.‛ Id. ¶ 20 (third alteration in
original). We come to a similar conclusion in this case.
¶14 Here, the medical panel report clearly designated the oral
histories as summaries of statements made by Employee and his
wife and not as formal factual findings. The report contained
numerous statements like ‚*Employee+ states that . . . ,‛ and
‚[Employee] says . . . .‛ And while the medical panel did not
itemize each fact provided in the oral histories that was not
present in the interim order and separately explain its impact on
the panel’s analysis, Employer has not persuaded us that the
medical panel failed to substantially comply with the ALJ’s
instructions. Rather, to the extent that the oral history summaries
include ‚additional‛ facts, the medical panel complied with the
ALJ’s instructions to ‚include them in [its] report‛ by
summarizing those facts in the report itself. See id.
¶15 Employer contends, however, that it was not just the
inclusion of additional facts that was improper, but the medical
panel’s reliance on them without a detailed description as to
how each fact impacted the ultimate conclusion. Employer
argues that the ALJ should therefore have determined the
medical panel’s report was unreliable. But in considering this
argument below, the ALJ concluded that the differences between
the facts Employer claimed had gone unexplained and the facts
in the interim order were ‚very minor and have little bearing on
the medical panel’s determination.‛ On appeal, Employer has
failed to engage with the ALJ’s reasoning. Instead, Employer
repeats the approach it appears to have taken below—simply
detailing what it sees as the report’s diversions from the interim
order’s instructions—without any meaningful attempt to
analyze their significance to the panel’s ultimate determination.
20140552-CA 7 2015 UT App 210Right Way Trucking, LLC v. Labor Commission
¶16 Indeed, the closest Employer gets to explaining the
materiality of its concerns is the following statement in its
opening brief: ‚A person’s symptoms determines the doctor’s
diagnosis. Whether o[r] not there was an overlap between
*Employee’s] symptoms and his work duties is material in
making the correct medical diagnosis.‛ In its reply brief,
Employer additionally argues, ‚If *Employee+ was not feeling ill
until he got home could have a significant impact on whether or
not he suffered a heat related illness due to his work.‛ From
these statements, it appears Employer’s concern is not whether
Employee suffered a heat-related illness—a conclusion
Employer’s own IME agreed with when he stated that ‚it is
medically probable that [Employee] suffered a heat related
illness‛—but whether that illness was work-related. While
Employer never states so explicitly, Employer’s primary concern
seems to be the discrepancies it alleges in the oral histories and
the facts in the interim order related to the timing of the
manifestation of Employee’s developing symptoms and the
timing of Employee’s work-related exertions. But in the end,
Employer’s arguments do not persuade us that the ALJ abused
her discretion, nor has Employer demonstrated that the ALJ’s
determination that any divergence between the facts in the
interim order and panel report’s oral histories was ‚very minor‛
and ‚ha*d+ little bearing on the medical panel’s determination‛
was unreasonable.
¶17 For example, Employer points to the interim order, which
states, ‚*Employee+ does not remember too much about the
evening after arriving home but has been told that he was
shaking, had diarrhea and a fever.‛ The oral histories add that
Employee was ‚very tired and not himself,‛ after returning
home, ‚parked the car crooked,‛ ‚kept repeating himself‛ and
was ‚acting like he was cold even though it was hot outside.‛
The oral histories also state that the next morning, Employee
‚was not able to make much sense,‛ ‚was incoherent with
speech,‛ and ‚had little to no coordination.‛ These facts seem to
do little more than fill in details about Employee’s condition at
the time. And Employer does not explain how the panel’s
conclusion that Employee suffered from work-related heat
20140552-CA 8 2015 UT App 210Right Way Trucking, LLC v. Labor Commission
illness would have been materially undermined without them.
We cannot see how the ALJ abused her discretion in determining
a statement by Employee that he was ‚out of shape,‛ a statement
included in the oral histories but not in the interim order, was
either ‚very minor‛ or had ‚little bearing‛ on the panel’s
conclusion that Employee’s work activities contributed to his
heat illness.
¶18 Other discrepancies in the interim order and the oral
histories that Employer relies on are equally unpersuasive. For
example, the interim order states, ‚*Employee+ does not
remember feeling ill or having a headache at any time between
Twin Falls and arriving at home,‛ but the oral histories state that
‚*Employee+ called *his wife+ after he unloaded the trailer in
Twin Falls and told her he felt awful, his heart was beating fast
and hard and he was overall not feeling well.‛ Employee’s wife
also reported in her oral history that, during what appears to be
the same conversation, ‚[Employee] sounded really out of breath
and panting.‛ The two sets of statements do not appear as
inconsistent as Employer claims. Rather, the timing of the
telephone call and its description of symptoms seem to fit within
the circumstances surrounding the crucial Twin Falls delivery
described in the interim order. The parties agree that after
completing his last delivery in Twin Falls, Employee
‚remembers perspiring and he testified that he felt exhausted
and tired.‛ Thus, Employer’s contention that the medical panel
report’s description of Employee’s telephone conversation with
his wife ‚after he unloaded the trailer in Twin Falls‛ but,
according to the oral history, before he drove to his next
destination, does not seem to conflict at all with the interim
order’s observation that Employee felt ‚exhausted‛ while in
Twin Falls but did ‚not remember feeling ill or having a
headache at any time between Twin Falls and arriving home.‛
Moreover, considering Employee’s apparent condition at the
time, the fact that he did not remember facts he told his wife on
the phone comes as no surprise.
¶19 Employer also argues that the medical panel’s oral history
description of events at the end of Employee’s trip diverges from
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the stipulated facts in the interim order. The order states that
Employee did ‚not remember too much about the evening after
arriving home but has been told that he was shaking, had
diarrhea and a fever.‛ In his oral history, included in the panel’s
report, however, Employee gives a bit more detail. It relates that
he began ‚to experience more symptoms‛ in ‚the last remaining
minutes of his drive‛ and that he was ‚tired, felt chilled despite
the heat and was not thinking well.‛ These statements, again,
seem to add some additional detail to the interim order’s
stipulated facts, but the discrepancies could be reasonably
described as ‚minor.‛ A similar conclusion can be made about
the difference between the interim order’s stipulation that
Employee made a forty-five minute stop the day before he was
admitted to the hospital, while the panel report’s oral history
states that the stop lasted an hour. These discrepancies seem
trivial in the recounting, and Employer makes little effort to
dispel that impression. A similar dearth of analysis also impedes
Employer’s facially more significant complaint that the panel
report omitted any mention of the stipulated facts that
Employee’s truck was air conditioned, that the Idaho Falls
warehouse where he stopped for a while on his way home had
air-circulating fans, and that he ‚always carr[ied] plenty of
water.‛ While this suggests to us a possible argument that
Employee had the potential for recovery from the heat-related
distress he experienced during his Twin Falls exertions during
the drive over to Idaho Falls and eventually home, Employer
does not make such an argument beyond what may be implied
from its listing of factual deviations it claims are ‚significant.‛
¶20 In summary, the operative facts in this case are those
found by the ALJ and approved by the Commission. See Speirs v.
Southern Utah Univ., 2002 UT App 389, ¶ 10, 60 P.3d 42. Given
Employer’s failure to sufficiently explain the significance of any
additional, inconsistent, or omitted facts, we are not persuaded
that the ALJ erred in concluding that any factual discrepancies in
the medical panel report were ‚very minor‛ and ‚ha*d+ little
bearing on the medical panel’s determination.‛ Accordingly, we
conclude that the ALJ was well within her discretion to
determine that the medical panel’s efforts to explain the facts it
20140552-CA 10 2015 UT App 210Right Way Trucking, LLC v. Labor Commission
relied on in coming to its conclusion were satisfactory and that
any deviation from her order did not render the entire report
void or unreliable, as Employer argues. We therefore conclude
the ALJ did not abuse her discretion in admitting the medical
panel’s report into evidence or her denial of Employee’s request
for an objection hearing.
B. The Commission Did Not Abuse Its Discretion in Denying
Employer’s Request for Clarification.
¶21 For similar reasons, we conclude that the Commission did
not abuse its discretion in affirming the ALJ’s decision and
refusing to send the following question to the medical panel:
‚Did you rely solely on the facts set forth in the *ALJ’s+ Interim
Order? If not, please explain what additional facts you relied on
in rendering your opinion.‛ The Commission explained that it
was ‚not convinced that the medical panel actually relied on the
allegedly inconsistent facts‛ to begin with and affirmed the
ALJ’s decision, which included her finding that the additional
facts were ‚minor‛ and immaterial. We see no abuse of
discretion in this determination. Employer has failed to convince
us that the Commission’s refusal to send the requested query
back to the medical panel was unreasonable in light of the fact
the ALJ had already determined that the medical panel report
was reliable and that any reliance by the medical panel on facts
additional to the interim order was immaterial. Having
concluded that the ALJ did not abuse her discretion in admitting
the medical panel’s report into evidence, we also conclude that
the Commission did not abuse its discretion in affirming that
decision and in denying Employer’s request for clarification.1
1. We are not persuaded that the medical panel’s inclusion of
these additional facts and its omission of certain facts, combined
with its failure to specifically state that it read the ALJ’s interim
order, is proof that the medical panel completely ignored and
failed to read or rely on the ALJ’s interim order. Employer goes
so far as to argue in its reply brief that, given the presence of
(continued…)
20140552-CA 11 2015 UT App 210Right Way Trucking, LLC v. Labor Commission
II. New and Conflicting Medical Evidence
¶22 Employer contends that the IME’s response to the medical
panel’s report constituted conflicting medical evidence that
required the ALJ to hold an objection hearing prior to admitting
the panel’s report into evidence. The Utah Administrative Code
states, ‚A hearing on objections to the panel report may be
scheduled if there is a proffer of conflicting medical testimony
showing a need to clarify the medical panel report.‛ Utah
Admin. Code R602-2-2(B)(4). Rule 602-2-2 also states that when
new medical evidence is presented, in lieu of an objection
hearing, the ALJ can ‚re-submit the new evidence to the panel
for consideration and clarification.‛ Id. Accordingly, Employer
argues that the Commission abused its discretion when it
refused to send the IME’s response back to the medical panel for
further consideration. We see no abuse of discretion in the ALJ’s
and the Commission’s decisions that the IME’s response did not
constitute new or conflicting medical evidence that required
them either to provide an objection hearing or to send the IME
response to the panel for further consideration.
¶23 The case of Resort Retainers v. Labor Commission, 2010 UT
App 229, 238 P.3d 1081, is instructive. There, the employer
‚offered a new, more recent medical opinion from yet another
doctor . . . recommending against surgery.‛ Id. ¶ 31. ‚The
(…continued)
additional facts and the absence of the omitted ones, that ‚*i+t is
certainly conceivable that a medical panel could only read the
cover letter and the medical records and the diagnostic records
and render an opinion.‛ We are unconvinced that the panel’s
failure to state specifically that it read and relied on the interim
order means that it did not, particularly in light of its statement
that it ‚independently reviewed the file and imaging studies
made available to the panel.‛ Any argument by Employer that
the medical panel failed to read the interim order is entirely
speculative.
20140552-CA 12 2015 UT App 210Right Way Trucking, LLC v. Labor Commission
Commission reviewed the new medical opinion and determined
that ‘the medical consultant based his opinion on the medical
evidence that the medical panel had already reviewed.’‛ Id. ‚In
other words, there was no new medical information, but simply a
new opinion based on information already reviewed by the
medical panel and the Commission. As a result, the Commission
‘decline*d+ to reopen the evidentiary record to include’‛ the new
statement. Id. (alteration in original). We concluded that
[t]he Commission’s decision to deny a new
evidentiary hearing following a new medical
opinion on issues already decided is within the
bounds of reasonableness and rationality. If the
process of determining benefits were to require a
new hearing following each new opinion, without
requiring actual new information or status, the
process would potentially never end. The
Commission did act reasonably in reviewing the
new medical opinion and then determining that
the opinion did not provide new information . . .
sufficient to necessitate a new evidentiary hearing.
Id. ¶ 32.
¶24 We arrive at a similar conclusion in this case. In his initial
report, the IME opined that ‚the primary cause of *Employee’s+
life threatening illness of July 2012 was the streptococcal
infection in his blood stream‛ and while Employee’s ‚intense
work schedule just prior to the infection may have made
[Employee] more susceptible to this infection,‛ it ‚did not cause
the infection.‛ Rather, the IME explained, though ‚*i+nvasive
group A strep infections are usually acquired from a state of
colonization in one’s own upper airway or through a break in
the skin,‛ the initial source of the strep in this case was
‚unknown.‛ Because the ALJ considered this opinion to conflict
with Employee’s treating physician’s opinion that the infection
and other conditions resulted from employment-related heat
illness, the matter was referred to the medical panel. After the
medical panel filed its report, Employer objected and requested
20140552-CA 13 2015 UT App 210Right Way Trucking, LLC v. Labor Commission
a hearing based on the following response to the panel report
from the IME:
I am not an expert on heat related illnesses.
However, based on the patient’s history of a heavy
work load on a very hot day, I think it is medically
probable that [Employee] suffered a heat related
illness . . . . However, . . . I disagree with the
conclusion by [the medical panel] that heat related
illness caused a ‚leaky‛ gut, that in turn lead to
bacteremia. To my knowledge, heat related illness
does not typically cause bacteremia. In addition,
group A streptococcus is not considered a normal
gut flora. As stated in my initial report dated
January 25th 2013, heat related illness may have
made [Employee] more susceptible to infection but
did not cause his illness per se. The etiology of this
patient[’]s group A streptococcus blood stream
infection is unknown as is true in many cases.
This response essentially repeated the IME’s original opinion
that a strep infection of unknown origin, not work activities,
caused Employee’s illness. The only additional information the
IME provided was his agreement that Employee probably
‚suffered a heat related illness‛ that was apparently work-
related and his disagreement with the medical panel’s
conclusion ‚that heat related illness caused a ‘leaky’ gut,‛ that
‚*led+ to bacteremia.‛ He explained this disagreement by stating
that ‚[t]o [his] knowledge, heat related illness does not typically
cause bacteremia‛ and that ‚group A streptococcus is not
considered a normal gut flora.‛ But as the ALJ herself noted, the
IME’s first criticism must be considered in light of his concession
that he was ‚not an expert on heat related illnesses‛ and the
second in light of the dearth of any explanation for his bare
conclusion. Thus, given the nature of the IME’s response, we are
not persuaded that either the ALJ or the Commission abused its
discretion in declining Employer’s requests to hold an objection
hearing or send the IME’s response back to the panel. While they
might rationally have made another decision under the
20140552-CA 14 2015 UT App 210Right Way Trucking, LLC v. Labor Commission
circumstances, Employer has not shown that the decision they
did make exceeded the bounds of reasonableness. See id.III. Attorney Fees
¶25 Employee requests attorney fees incurred in pursuing this
judicial review proceeding. Attorney fees in workers’
compensation cases are governed by rule 602-2-4 of the Utah
Administrative Code. ‚For legal services rendered in
prosecuting or defending an appeal before the Utah Court of
Appeals,‛ the attorney fee awarded shall be ‚30% of the benefits
in dispute before the Court of Appeals.‛ Utah Admin. Code
R602-2-4(C)(3)(b). Because of the pendency of this proceeding,
the amount in dispute has not yet been determined. We
therefore return this matter to the Labor Commission for a
determination of the amount that will be awarded as a result of
our decision not to disturb the Commission’s decision in this
case, and to calculate an award of attorney fees to Employee in
accordance with the rule.
CONCLUSION
¶26 We conclude that the Commission appropriately affirmed
the ALJ’s order because the ALJ did not abuse her discretion in
admitting the medical panel’s report into evidence or denying
Employer’s request for an objection hearing. We also conclude
that the Commission did not abuse its discretion in denying
Employer’s request to send a query to the medical panel or the
IME’s response to the report to the medical panel for review.
¶27 Accordingly, we decline to disturb the Commission’s
order and we return this matter for a determination of attorney
fees.
20140552-CA 15 2015 UT App 210