Par Electrical & Old Republic Insurance Co. v. Labor Commission

2017 UT App 169THE UTAH COURT OF APPEALS
PAR ELECTRICAL AND OLD REPUBLIC INSURANCE CO.,
Petitioners,
v.
LABOR COMMISSION AND JOSEPH BALL,
Respondents.
Opinion
No. 20150913-CA
Filed September 8, 2017
Original Proceeding in this Court
Brad J. Miller and Andres Hermosillo, Attorneys
for Petitioners
Addison D. Larreau and W. Scott Lythgoe, Attorneys
for Respondent Joseph Ball
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and KATE A. TOOMEY concurred.
POHLMAN, Judge:
¶1 Par Electrical and its insurance carrier, Old Republic
Insurance Co., (collectively, Par) seek judicial review of the Utah
Labor Commission’s affirmance of an administrative law judge’s
order awarding permanent total disability compensation to
Joseph Ball under the Workers’ Compensation Act. We decline
to disturb the Commission’s decision.
Par Electrical v. Labor Commission
BACKGROUND1
¶2 Ball worked for Par as a journeyman lineman servicing
powerlines and electrical transformers. His duties required him
to climb telephone poles wearing a tool belt that weighed 45
pounds on average and to manipulate into place transformers
weighing approximately 2,500 pounds. In December 2006, Ball
was repairing a transformer on an electric pole. To make the
repair, the powerline had to remain live to allow Ball to transfer
power to another transformer without interrupting electrical
service. When Ball climbed the pole, he came in contact with live
wires and deliberately fell back to break free of the electricity.
Ball struck a shed on his way down and found himself hanging
upside down inside it.
¶3 Ball was taken to the hospital where he was treated for
multiple injuries, including non-displaced fractures in his
thoracic vertebrae from T3 to T8 and an endplate fracture of the
T5 vertebra. Ball was discharged from the hospital a few days
after the accident, but he continued to receive treatment for his
work injuries.
¶4 In March 2007, Dr. Chung, one of Ball’s treating
physicians, opined that the accident medically caused a
compression fracture of the T5 vertebra and assessed Ball with a
6% whole-person impairment rating due to his work injuries. In
April 2008, Dr. Chung recorded that Ball was having difficulty
performing strenuous work, and in October 2009, Dr. Chung
prescribed Ball medication for pain caused by the thoracic spine
compression fracture. Dr. Chung also placed permanent work
restrictions on Ball, limiting him from lifting more than “50
pounds, or 25 pounds repetitively,” and stating that Ball should
1. In reviewing the Commission’s decision, we view the facts in
the light most favorable to the Commission’s findings. Fogleman
v. Labor Comm’n, 2015 UT App 294, ¶ 2 n.1, 364 P.3d 756.
20150913-CA 2 2017 UT App 169Par Electrical v. Labor Commission
not repetitively bend or twist his torso and should change
position every 30 minutes.
¶5 In October 2010, Dr. Adams, another treating physician,
assessed Ball’s physical capacity and opined that Ball was
limited by his constant back pain, headaches, and depression
stemming from the pain. Dr. Adams indicated that Ball could lift
up to 10 pounds continuously, and up to 20 pounds frequently,
but that he should not lift more than 20 pounds or carry any
weight. Dr. Adams also reported that Ball’s pain continuously
interfered with his ability to concentrate on even simple work
tasks.
¶6 Ball attempted to return to work after the accident, taking
jobs with other companies, but was unable to perform assigned
duties due to continuing back pain. In one job, Ball’s pain flared
so much that he had difficulty standing and his employment was
terminated. In another, he worked as a foreman, supervising the
work of others, but the job evolved to require heavy labor, and
Ball could not perform the work because of his back pain. Ball’s
attempts to find other work were unsuccessful.
¶7 In September 2011, Ball filed a claim for permanent total
disability compensation. Par’s medical consultant, Dr.
Woodward, evaluated Ball and opined that the work accident
medically caused the transverse-process fractures in his thoracic
spine, but he expressed uncertainty about whether the accident
caused the T5 compression fracture. Dr. Woodward further
concluded that Ball had no permanent work restrictions based,
in part, on his understanding that Ball worked after the accident.
¶8 Following an evidentiary hearing, the administrative law
judge (the ALJ) entered an interim order, concluding that the
accident was the legal cause of Ball’s injury but referring the
medical issues, including medical cause, to a medical panel for
evaluation. The ALJ directed the medical panel to answer three
sets of questions, including inquiries regarding Ball’s permanent
20150913-CA 3 2017 UT App 169Par Electrical v. Labor Commission
work restrictions. In posing her questions, the ALJ instructed as
follows:
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.
¶9 A panel of two doctors—a neurologist and an orthopedic
surgeon who specializes in upper extremities—examined Ball in
June 2014 and reviewed his medical history with him. The panel
also reviewed the ALJ’s Findings of Fact and Interim Order,
imaging studies, and 278 pages of Ball’s medical records from
various providers, including Dr. Woodward’s evaluation. The
panel opined that Ball’s thoracic spine problems were medically
caused by the work accident but that his cervical and lumbar
spine problems were not. The panel opined that Ball’s “lifting
restrictions should be changed [from those set by Dr. Chung in
2009] to a light category namely lifting 20 [pounds] occasionally
and 10 [pounds] frequently.” In support of its opinion, the
medical panel explained that it suspected that the 2009 work
restrictions “were given on the basis of subjective pain reports”
and that “[i]t is reasonable to give [Ball] the benefit of the doubt
that he has chronic mid-back pain due to the T5 compression
fracture that is worsened by heavy lifting.” The panel also stated
it had “no reason to doubt” Ball’s report that the work
restrictions provided by Dr. Chung “were insufficient to protect
him from work activity-related flare-ups.”
¶10 After receiving Par’s objection to the medical panel’s
evaluation, the ALJ issued findings and an order wherein she
concluded that Ball was permanently and totally disabled.
Among other things, the ALJ concluded that Ball “suffered a
significant impairment as the result of the December 5, 2006
20150913-CA 4 2017 UT App 169Par Electrical v. Labor Commission
industrial accident.” She also determined that as a result of that
impairment, Ball “has permanent work restrictions that limit
[his] ability to lift more than 20 pounds on an occasional basis,
remain in one position for more than 30 minutes at a time
and . . . to bend and twist.”
¶11 Par sought review of the ALJ’s order by the Commission
on two grounds. First, Par challenged the ALJ’s determinations
under Utah Code subsections 34A-2-413(1)(c)(iii) and (iv) that
related to Ball’s ability to perform other work. Second, Par
argued that in opining on appropriate work restrictions, the
medical panel improperly relied on Ball’s self-report that Dr.
Chung’s 2009 work restrictions were insufficient to protect him
from pain. The Commission affirmed the ALJ’s decision and
preliminary award of permanent total disability compensation to
Ball. Par now petitions for judicial review.
ISSUES AND STANDARDS OF REVIEW
¶12 As we understand it, Par makes three primary
contentions. First, with regard to the issue of medical causation,
Par contends the ALJ ignored evidence and failed to support her
findings with substantial evidence. Second, with regard to the
requirement that Ball demonstrate that he is permanently and
totally disabled, Par contends the Commission failed to consider
the statutory factors, the ALJ did not consider all relevant
evidence, and Ball failed to satisfy his burden of proof. Third,
Par argues that the ALJ abused her discretion in relying on a
medical panel report that included findings based on Ball’s
verbal report about the inadequacy of Dr. Chung’s 2009 work
restrictions.
¶13 This court’s authority to review final agency actions is
derived from the Administrative Procedures Act. Utah Code
Ann. § 63G-4-403(1) (LexisNexis 2016). That Act provides that
we may grant relief if we determine that a petitioner “has been
substantially prejudiced” by, among other things, (1) the agency
20150913-CA 5 2017 UT App 169Par Electrical v. Labor Commission
erroneously interpreting or applying the law, (2) the agency
basing its action upon a factual determination “that is not
supported by substantial evidence when viewed in light of the
whole record before the court,” or (3) the agency abusing the
discretion delegated to it by statute or otherwise acting
arbitrarily or capriciously. Id. § 63G-4-403(4)(d), (g), (h)(i), (h)(iv).
ANALYSIS
¶14 We begin with a brief review of the statutory framework
applicable to claims for permanent total disability compensation.
“The award of permanent total disability is a multi-step
process.” Columbia HCA v. Labor Comm’n, 2011 UT App 210, ¶ 11,
258 P.3d 640. The employee must first prove, by a
preponderance of the evidence, that the employee “sustained a
significant impairment” as a result of a work accident, that the
employee is permanently and totally disabled, and that the work
accident is the “direct cause” of the employee’s permanent, total
disability. Utah Code Ann. § 34A-2-413(1)(b) (LexisNexis Supp.
2016).2 Next, to prove a permanent, total disability, the employee
must prove, also by a preponderance of the evidence, that
(i) the employee is not gainfully employed;
(ii) the employee has an impairment or
combination of impairments that reasonably limit
the employee’s ability to do basic work activities;
(iii) the industrial or occupationally caused
impairment or combination of impairments
prevent the employee from performing the
2. Because the differences between the statutory provisions in
effect at the relevant time and those now in effect are not
material to our analysis, we refer to the current version of the
statute for convenience.
20150913-CA 6 2017 UT App 169Par Electrical v. Labor Commission
essential functions of the work activities for which
the employee has been qualified until the time of
the industrial accident . . . that is the basis for the
employee’s permanent total disability claim; and
(iv) the employee cannot perform other work
reasonably available, taking into consideration the
employee’s: (A) age; (B) education; (C) past work
experience; (D) medical capacity; and (E) residual
functional capacity.
Id. § 34A-2-413(1)(c).
¶15 “Once the ALJ makes an initial finding of permanent total
disability, the employer is given the opportunity to submit a
reemployment plan,” Columbia, 2011 UT App 210, ¶ 11 (citing
Utah Code subsection 34A-2-413(5)(a)), the purpose of which is
to “return an injured worker with a disability to gainful
employment,” Utah Code Ann. § 34A-2-413.5(10) (LexisNexis
Supp. 2016).
I. Medical Causation
¶16 Par contends that the ALJ erred in awarding Ball
permanent total disability benefits because his December 2006
work accident was not the direct cause of his disability.
Specifically, Par argues that the ALJ ignored evidence on the
issue of medical causation, including that Ball suffered from
preexisting conditions, and that her findings were not supported
by substantial evidence. Before we address the merits of Par’s
contention, we must first consider the threshold issue of whether
Par properly preserved this issue for review.
¶17 Our rules require petitioners to demonstrate, by citation
to the record, that all issues raised for judicial review were
presented before the Commission. See Utah R. App. P.
24(a)(5)(A); id. R. 18 (“All provisions of these rules are applicable
to review of decisions or orders of agencies . . . .”). Alternatively,
20150913-CA 7 2017 UT App 169Par Electrical v. Labor Commission
where an issue is unpreserved, the petitioner must identify
grounds for seeking review of that issue. Id. R. 24(a)(5)(B).
¶18 Par did not comply with rule 24(a)(5). Its brief contains no
record citations demonstrating that any one of the issues it raises
was preserved, nor does it identify grounds justifying our
review of unpreserved issues. Although we are under no
obligation to do so, see Wohnoutka v. Kelley, 2014 UT App 154,
¶ 11, 330 P.3d 762, we have reviewed the administrative record
in an effort to determine whether the issues Par raises were
preserved. With regard to Par’s challenges to findings and
conclusions relating to medical causation, we deem those
challenges waived.
¶19 In Ashcroft v. Industrial Commission, 855 P.2d 267 (Utah Ct.
App. 1993), this court considered whether the petitioner
properly preserved for review issues of sufficiency of the
evidence and adequacy of the ALJ’s findings relating to medical
and legal causation. Id. at 268. The court held that the petitioner
waived his challenges to the ALJ’s findings by failing to raise the
issues before the Commission and could not raise them for the
first time on petition for judicial review. Id. at 268–69.
¶20 Similarly, here, Par identified only two errors in its
motion for review of the ALJ’s findings and order, neither of
which related to the ALJ’s findings regarding medical causation.
Thus, Par has waived its challenges to the sufficiency of the
ALJ’s findings relating to medical causation because it did not
challenge those findings before the Commission. See id.; see also
Barnhart v. Labor Comm’n, 2011 UT App 87, ¶ 2, 250 P.3d 1015(per curiam) (determining that the petitioner waived a challenge
to the ALJ’s order where the petitioner did not raise the issue
before the Commission in his motion for review).3
3. In an argument related to its challenge to the ALJ’s findings
concerning medical causation, Par contends that the
(continued…)
20150913-CA 8 2017 UT App 169Par Electrical v. Labor Commission
II. Ball’s Ability to Perform Other Work
¶21 Par contends that the ALJ and/or the Commission erred in
determining that Ball is permanently and totally disabled
according to the requirements of Utah Code subsection 34A-2-
413(1)(c). Par argues that the Commission did not consider the
statutory factors, that the ALJ failed to consider relevant
evidence, and that Ball did not satisfy his burden of proof. We
will address each argument in turn.
¶22 First, referring to subsection (iv) of the statute, which
requires that Ball “cannot perform other work reasonably
available,” see Utah Code Ann. § 34A-2-413(1)(c)(iv) (LexisNexis
Supp. 2016), Par argues that the “Commission failed to consider
various factors including [Ball’s] age; education; past work
(…continued)
Commission should have “apportioned out of the permanent
total disability award” Ball’s preexisting degenerative conditions
in his cervical and lumbar spine. Par has not demonstrated that
this issue was preserved, see supra ¶ 17, and our review of the
record shows that it was not raised before the Commission. Par
also has failed to support its contention with any analysis or
authority as required by the Utah Rules of Appellate Procedure.
See Utah R. App. P. 24(a)(9) (requiring the petitioner’s argument
to “contain the contentions and reasons . . . with respect to the
issues presented, . . . with citations to the authorities, statutes,
and parts of the record relied on”). Because Par’s argument is
both undeveloped and unpreserved, Par has not carried its
burden of persuasion. See Bank of Am. v. Adamson, 2017 UT 2,
¶ 12, 391 P.3d 196 (“[A]n appellant who fails to adequately brief
an issue will almost certainly fail to carry its burden of
persuasion on appeal.” (citation and internal quotation marks
omitted)); Whitear v. Labor Comm’n, 973 P.2d 982, 985 (Utah Ct.
App. 1998) (“It is well settled that issues not raised before the
Commission are waived on appeal.”).
20150913-CA 9 2017 UT App 169Par Electrical v. Labor Commission
experience; medical capacity; and residual functional capacity.”
(Internal quotation marks omitted.) Par’s argument not only
lacks analysis, but it is not borne out by the record.
¶23 The ALJ’s factual findings, which were adopted by the
Commission, noted that Ball was 61 years old when Par’s
vocational expert evaluated him in 2012, that he had a high
school education, and that he did not know how to use a
computer. The ALJ also discussed at length Ball’s work history,
the type of labor Ball is capable of doing, and his limitations.
Moreover, in concluding that Ball “cannot perform other work
reasonably available” under Utah Code subsection 34A-2-
413(1)(c)(iv), the Commission referred to Ball’s “limited
education,” his past work experience, his work restrictions, and
his inability to work in the heavy-labor positions he fulfilled in
the past as a result of his “diminished physical capacity.”
Having overlooked these findings and conclusions, Par’s
contention that the Commission did not consider the statutory
factors under subsection 34A-2-413(1)(c)(iv) fails. Cf. Duchesne
Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257
P.3d 441 (rejecting an argument that did not “address[] the
actual basis” for the challenged decision).
¶24 Second, Par contends that the ALJ “misapplied prongs
(iii) and (iv) of [Utah Code subsection] 34A-2-413(1)(c) to the
facts of this case.” Referring to the fact that Ball worked as a
foreman after the accident, Par argues that the job requirements
“were more managerial and light duty” and that Ball “would
still be doing [the job]” if it were available. Par contends that the
ALJ failed to discuss Ball’s ability to work in this capacity, and
thus she erred in concluding that Ball cannot perform work
reasonably available to him.
¶25 Par’s argument is misdirected. The Workers’
Compensation Act provides that “an aggrieved party may
secure judicial review [of an award of permanent total disability
benefits] by commencing an action in the court of appeals
20150913-CA 10 2017 UT App 169Par Electrical v. Labor Commission
against the commissioner . . . for the review of the decision of the
commissioner.” See Utah Code Ann. § 34A-2-801(9)(a) (LexisNexis
Supp. 2016) (emphasis added). If Par were challenging the ALJ’s
factual findings, those findings would be within the scope of our
review because they were adopted by the Commission. But Par
takes issue with the basis for the ALJ’s conclusion that Ball
cannot perform work reasonably available to him. The
Commission reached its own conclusions on that issue, stating
that it was unpersuaded by Par’s claim. The Commission found
that “while . . . Ball started out in the foreman position not
having to engage in heavy work, he was gradually required to
do heavy work that he could no longer perform with his lifting
and postural restrictions.” Having failed to address the
Commission’s reasoning, Par cannot succeed on appeal. See Utah
Physicians for a Healthy Env’t v. Executive Dir. of the Utah Dep’t of
Envtl. Quality, 2016 UT 49, ¶ 17, 391 P.3d 148 (“To succeed on
appeal, the Petitioners must take issue with and demonstrate
error in a final agency action . . . .”).
¶26 Third, citing Olsen v. Labor Commission, 2011 UT App 70,
249 P.3d 586, Par contends that Ball failed to satisfy his burden to
demonstrate that “‘he can no longer perform the duties required
in h[is] occupation and that he cannot be rehabilitated to
perform some other type of employment.’” (Alteration in
original) (quoting id. ¶ 19). The burden Par describes is one
applicable to claimants seeking permanent total disability
benefits by virtue of the “odd-lot” doctrine, a doctrine that
“allows the Commission to find permanent total disability when
a relatively small percentage of impairment caused by an
industrial accident is combined with other factors to render the
claimant unable to obtain employment.” Zupon v. Industrial
Comm’n, 860 P.2d 960, 963 (Utah Ct. App. 1993) (citation and
internal quotation marks omitted).
¶27 Par has not demonstrated that the odd-lot doctrine
applies here. We have seen no indication in the record that Ball
relied on this doctrine in seeking permanent total disability
20150913-CA 11 2017 UT App 169Par Electrical v. Labor Commission
benefits, or that the Commission relied on the doctrine in
awarding benefits to Ball. Thus, Par’s argument that Ball failed
to satisfy his burden under this doctrine is wide of the mark.
III. The Medical Panel’s Findings
¶28 Finally, pointing to the medical panel’s reliance on Ball’s
verbal report about the efficacy of Dr. Chung’s 2009 work
restrictions, Par argues that the “ALJ abused her discretion in
determining [Ball] to be permanently and totally disabled by
admitting into evidence the medical panel report.” Once again,
Par directs its arguments against the wrong decision.
¶29 The Commission addressed and rejected Par’s contention
that the medical panel acted improperly and violated Par’s rights
“when the medical panel took . . . Ball at his word that Dr.
Chung’s [work] restrictions . . . were insufficient.” The
Commission concluded that Par’s rights were not violated
“because the panel did not base its work restrictions solely
on . . . Ball’s description of pain flare-ups under Dr. Chung’s
restrictions.” The Commission found that the medical panel
considered Dr. Chung’s work restrictions “along with the other
medical evidence pertaining to . . . Ball’s physical condition” and
found no reason to doubt Ball’s description of the pain he
continued to experience. The Commission further concluded that
the panel’s proposed restrictions “strike a fair balance between
Dr. Adams’s restrictions and Dr. Woodward’s finding
that . . . Ball had no physical limitations,” and were supported by
the medical evidence.
¶30 Rather than address the Commission’s decision on this
issue, Par attacks the reasoning of the ALJ. As we previously
explained, to succeed on judicial review, Par must demonstrate
error in the Commission’s decision. See supra ¶ 25. That is the
decision we have authority to review. See Utah Code Ann.
§ 34A-2-801(9)(a) (LexisNexis Supp. 2016). By failing to engage
with the Commission’s reasoning, Par cannot successfully
challenge the Commission’s decision. See Utah Physicians for a
20150913-CA 12 2017 UT App 169Par Electrical v. Labor Commission
Healthy Env’t v. Executive Dir. of the Utah Dep’t of Envtl. Quality,
2016 UT 49, ¶ 17, 391 P.3d 148; cf. Allen v. Friel, 2008 UT 56, ¶ 7,
194 P.3d 903 (“If an appellant fails to allege specific errors of the
lower [tribunal], the appellate court will not seek out errors in
the lower [tribunal’s] decision.”).
CONCLUSION
¶31 We conclude that Par has failed to demonstrate that the
Commission erred in determining that Ball is entitled to
permanent total disability benefits as a result of the December
2006 work accident. Accordingly, we do not disturb the
Commission’s decision.
20150913-CA 13 2017 UT App 169