Snyder v. Labor Commission

2017 UT App 187THE UTAH COURT OF APPEALS
RAYMOND M. SNYDER,
Petitioner,
v.
LABOR COMMISSION; WESTERN CONSTRUCTION SPECIALTIES;
UTAH PROPERTY AND CASUALTY GUARANTY ASSOCIATION;
AND FREMONT INSURANCE GROUP,
Respondents.
Opinion
No. 20160822-CA
Filed October 13, 2017
Original Proceeding in this Court
Raymond M. Snyder, Petitioner Pro Se
S. Grace Acosta and Alisha Giles, Attorneys
for Respondent Utah Property and Casualty
Guaranty Association
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN concurred.
TOOMEY, Judge:
¶1 Petitioner Raymond M. Snyder seeks judicial review of
the Labor Commission’s denial of his workers’ compensation
claim for permanent partial disability (PPD) compensation. We
decline to disturb the Labor Commission’s decision.
Snyder v. Labor Commission
BACKGROUND
¶2 In 1999, Snyder worked for Western Construction
Specialties (Western). 1 In July of that year, a hammer fell seventy
feet and struck Snyder’s “trapezius region” while he worked in
an elevator shaft (the accident). 2 As a result, Snyder experienced
shoulder and neck pain. After six days, Snyder continued to
have shoulder and neck pain, and Western sent him to Work
Care for an evaluation and x-rays. The x-rays did not reveal a
fracture, and he was diagnosed with “strains and sprains of
shoulder and upper arm” and a right shoulder contusion in the
supraspinatus muscle—a muscle in the rotator cuff. Snyder told
the physician that he had “no tenderness along the . . . right
shoulder joint.”
¶3 As a result of the injury, Snyder was placed on light duty
for seven days because his employment as an iron worker
consisted of repetitive, heavy, overhead lifting. He started
attending physical therapy, which helped with the pain. In a
follow-up appointment, Snyder “denie[d] any other signs and
symptoms associated [with the accident].”
¶4 In October, after Snyder had returned to full duty, an MRI
revealed a possible partial rotator cuff tear and a degenerative
1. In reviewing the Labor Commission’s decision, we view the
facts in the light most favorable to the Commission’s findings.
See Fogleman v. Labor Comm’n, 2015 UT App 294, ¶ 2 n.1, 364 P.3d
756.
2. At the time of the accident, Western was insured by Fremont
Insurance Group, but Fremont entered bankruptcy and Utah
Property and Casualty Guaranty Association assumed Fremont’s
accounts, including Snyder’s account (collectively, Western and
its insurers are referred to as UPCIGA).
20160822-CA 2 2017 UT App 187Snyder v. Labor Commission
cyst in his right shoulder indicative of “underlying arthritis.” By
December, Snyder’s pain had increased, and he continued to
complain of “pain across the base of the neck area across the
trapezius to the superior shoulder area.” Work Care’s evaluation
report stated he still had “full range of motion to the shoulder
joint” and full strength. Snyder sought a second opinion from a
physician (Physician), who found he had “limited [range of
motion] in his neck.” Physician told Snyder to begin a “neck
stabilization rehab program.” The reports of both Work Care
and Physician focused on treating Snyder’s neck pain, as this
was his chief complaint, though Snyder commented that he “still
ha[d] some [shoulder] pain with overhead motion.”
¶5 In March 2000, Physician referred Snyder to a surgeon
(Surgeon) to discuss treatment. A year and a half later, Snyder
elected to have surgery to repair a possible partial rotator cuff
tear and told Surgeon “he just went on a kayaking trip and felt
that this may have aggravated [his shoulder pain].” His
preoperative report indicated that there was “no evidence of
acute fracture” and he had “mild degenerative changes” in his
right shoulder joint. During surgery, Surgeon found the
supraspinatus tendon was partially frayed but was intact.
Surgeon and Physician each attributed the need for this surgery
to the accident. UPCIGA paid for Snyder’s shoulder surgery and
subsequent physical therapy. Snyder also received PPD
compensation.
¶6 In 2003, UPCIGA referred Snyder’s medical records to a
second physician (Second Physician) to determine whether the
accident caused the rotator cuff injury that required surgery.
Second Physician opined that it was “more probable than not
that the surgery [was] related to degenerative work related
condition[s] rather than the [accident].” UPCIGA then asked
Surgeon to provide “information to determine [Snyder’s]
entitlement to future benefits.” Surgeon informed UPCIGA that
Snyder had reached medical stability and did not require
20160822-CA 3 2017 UT App 187Snyder v. Labor Commission
“further medical care . . . directly relate[d] to the [accident].” In
this same document, Surgeon also stated that he prescribed
medication for “long term treatment” of Snyder’s arthritis.
¶7 Six years went by, and in late 2010, Surgeon assessed
Snyder “with progression of degenerative arthritic changes in
his right shoulder,” leading Snyder to express concerns that “he
would not be able to go on a rafting trip.” By August 2011,
Snyder’s degenerative arthritis had progressed, and Surgeon
recommended a total shoulder replacement surgery. But Snyder
opted to postpone surgery because he had two more long rafting
trips planned. In November 2012, Snyder finally had a total
shoulder replacement. He was diagnosed with end-stage
osteoarthritis and Surgeon opined that the accident medically
caused the arthritis and the need for a shoulder replacement.
UPCIGA paid for the surgery.
¶8 Two years after the total shoulder replacement surgery,
Snyder had an impairment rating evaluation and was informed
that he qualified for an “11% whole person” impairment rating. 3
In 2014, Snyder applied for PPD compensation for his 11% whole
person impairment rating that resulted from his degenerative
arthritis. At UPCIGA’s request, a third physician (Third
Physician) performed a medical examination to determine
whether the accident caused Snyder’s arthritis. Third Physician
opined that the degeneration in Snyder’s shoulder was a result
of “chronic use” which was consistent with a “gentleman [at
this] age working heavy overhead activity all of those years
developing rotator cuff disease.”
3. The treating physician who provided this rating explained
that “[a]n impairment rating is the measurement of the residual
deficits that remain[] because of the injury or event, after an
injured worker reaches medical stability.”
20160822-CA 4 2017 UT App 187Snyder v. Labor Commission
¶9 Snyder received an initial hearing on his application for
PPD compensation. The administrative law judge (the ALJ)
referred the joint medical records exhibit (the MRE) to a medical
panel to resolve the dispute as to the medical cause of Snyder’s
degenerative arthritis. An occupational-medicine expert and an
orthopedic surgeon comprised the medical panel. It reviewed
Snyder’s “relevant medical history and examined him before
concluding that the accident did not medically cause the current
degenerative arthritis in his right shoulder.” The medical panel
drafted a report supporting its conclusion.
¶10 The ALJ denied Snyder’s request for PPD compensation
based on the medical panel’s determination that the accident did
not cause his degenerative arthritis. The Labor Commission
affirmed the ALJ’s decision. Snyder now seeks judicial review of
the Labor Commission’s denial of his request for PPD
compensation.
ISSUES AND STANDARD OF REVIEW
¶11 Snyder contends there was insufficient evidence for the
Labor Commission to conclude that his shoulder injury was not
the result of the accident. “We will not disturb the Commission’s
factual finding unless the party challenging the findings
demonstrates that a finding is not supported by substantial
evidence.” Hutchings v. Labor Comm’n, 2016 UT App 160, ¶ 23,
378 P.3d 1273; accord Utah Code Ann. § 63G-4-403(4)(g)
(LexisNexis 2016) (“The appellate court shall grant relief only
if . . . a person seeking judicial review has been substantially
prejudiced by . . . [an] agency action [that] is based upon a
determination of fact, made or implied by the agency, that is not
supported by substantial evidence[.]”).
20160822-CA 5 2017 UT App 187Snyder v. Labor Commission
ANALYSIS
I. Inadequate Briefing
¶12 As we understand it, Snyder makes six contentions. 4 He
contends the Labor Commission erred (1) in denying his
“request for hearing on underpaid benefits”; (2) in denying his
request for a hearing related to his “being removed from a suit
between insurers”; (3) “in adopting the medical panel report”;
(4) in adopting the factual findings that decades of rowing
activities contributed to his arthritis; (5) “in holding [him] to the
same standard as a qualified member of the [Utah State Bar]”;
and (6) in denying him PPD compensation.
¶13 With respect to the first five claims, Snyder “failed to
develop his citation to authority, and failed to provide any
reasoned analysis based on that authority.” See State v. MacNeill,
2017 UT App 48, ¶ 84, 397 P.3d 626; see also State v. Roberts, 2015
UT 24, ¶ 18, 345 P.3d 1226 (explaining that “our adequate
briefing requirement . . . is a natural extension of an appellant’s
burden of persuasion” (citation and internal quotation marks
omitted)). Under rule 24(a)(9) of the Utah Rules of Appellate
Procedure, an appellant’s brief is required to “contain the
contentions and reasons of the appellant with respect to the
issues presented . . . with citations to the authorities, statutes,
and parts of the record relied on.” An issue is inadequately
briefed if “the argument merely contains bald citations to
authority [without] development of that authority and reasoned
analysis based on that authority.” Bank of America v. Adamson,
2017 UT 2, ¶ 11, 391 P.3d 196 (alteration in original) (citation and
internal quotations marks omitted). While inadequate briefing is
4. Snyder identified several issues for judicial review but failed
to address each of these in the argument section of his brief and
made arguments that he did not specifically identify as issues.
20160822-CA 6 2017 UT App 187Snyder v. Labor Commission
no longer “an absolute bar to review of an argument on appeal,”
a party that “fails to adequately brief an issue will almost
certainly fail to carry its burden of persuasion on appeal.” Rose v.
Office of Prof’l Conduct, 2017 UT 50, ¶ 64 (citations and internal
quotation marks omitted). We have attempted to articulate and
respond to the substance of his contentions, see id. ¶ 66, but
ultimately we conclude Snyder failed to carry his burden of
persuasion on appeal, id. ¶ 64, and we therefore decline to
disturb the Labor Commission’s order with respect to his claims.
A. Denial of Request for Hearing on Underpaid Benefits
¶14 Snyder contends the Labor Commission erred in
affirming the ALJ’s denial of his application for hearing on
underpaid benefits. He asserts that at the May 2015 hearing on
his application for PPD compensation the ALJ “advised Snyder
it would be . . . ‘wise’ to file another application for [a] hearing”
to address the claim that he may have been underpaid benefits.
Snyder did not file an application for hearing regarding the
underpaid benefits until nine months later in February 2016. His
application was “treated as a request to amend [his] current
application for [a] hearing” because it “relate[d] to the same
injury” and was denied as untimely filed. Snyder argues that the
Labor Commission abused its discretion when it affirmed this
denial but does not provide any legal authority to support this
argument or develop any reasoning that the February 2016
application should not be treated as a request to amend his
current application. We conclude Snyder has not met his burden
of persuasion on this issue and decline to disturb the Labor
Commission’s decision with respect to this claim.
B. Denial of Request for Hearing Regarding Subrogation
Lawsuit
¶15 Snyder contends that because he was “advised that
neither the Labor Commission nor the Appeals Board has
20160822-CA 7 2017 UT App 187Snyder v. Labor Commission
jurisdiction to adjudicate his allegations of contract fraud” at
issue in the subrogation lawsuit between insurers, the Labor
Commission left “the issue to be decided by this court.” Snyder
failed to provide us with any legal authority that would give us
jurisdiction to review a claim that was not developed below. We
have appellate jurisdiction over “a final order or decree resulting
from . . . a formal adjudicative proceeding of a state agency.”
Utah Code Ann. § 78A-4-103(2)(a)(i)(A). Black’s Law Dictionary
defines “appellate jurisdiction” as the “power of a court to
review and revise a lower court’s decision.” Appellate Jurisdiction,
Black’s Law Dictionary (9th ed. 2009). Thus, our jurisdiction is
limited to reviewing and revising claims adjudicated in the
lower court or agency proceedings. Because Snyder has not
challenged the Labor Commission’s conclusion that it did not
have jurisdiction to review his claim of contract fraud, see
Barnhart v. Labor Comm’n, 2011 UT App 87, ¶ 2, 250 P.3d 1015(per curiam) (concluding that Barnhart “waived” the issue of
whether his claims “were not within the Labor Commission’s
jurisdiction” because his objections were “not raised in the
agency proceeding”), and because he has not suggested an
exception to our rule that courts should not reach issues on
review that were not developed below, see Brown & Root Industry
Service v. Industrial Comm’n of Utah, 947 P.2d 671, 677 (Utah
1997), we conclude Snyder has not met his burden of persuasion
and dispose of this issue as inadequately briefed.
C. The Medical Panel’s Report
¶16 Snyder contends the Labor Commission erred in adopting
the medical panel’s report, alleging first that it was “incomplete,
factually erroneous . . . and included evidence fabricated by
[UPCIGA].” He notes that the MRE was incomplete because it
did not include the images of his x-rays. Although this is true,
the record included the radiologists’ findings for each of
Snyder’s x-rays. Snyder does not explain why the medical panel
would need the x-ray images for its evaluation or why it should
20160822-CA 8 2017 UT App 187Snyder v. Labor Commission
not have relied on the radiologists’ findings. In addition, Snyder
did not provide the x-ray images for inclusion in the joint MRE.
¶17 Second, Snyder alleges that UPCIGA “committed fraud
by fabricating a profile to explain Snyder’s shoulder
issues . . . with the intent to have benefits due [to] Snyder
denied.” Snyder recounts in detail his disagreement with the
opinions of the physicians that conducted medical examinations.
To be sure, the doctors disagreed about whether Snyder’s
degenerative arthritis was the result of the accident, and because
of this, the ALJ sent the medical records to a medical panel for
evaluation. See Utah Admin. Code R602-2-2(A)(1) (“A [medical]
panel will be utilized by the Administrative Law Judge where
one or more significant medical issues may be involved.
Generally a significant medical issue must be shown by
conflicting medical reports . . . [such as] [c]onflicting medical
opinions related to causation of the injury or disease[.]”) But
Snyder does not point us to anything in the record—and we
have found nothing in our review of it—that supports his
allegations of “fraud” 5 or “fabrication.” We conclude that
Snyder’s bare allegations of fraud and fabrication are insufficient
to carry his burden of persuasion, and we decline to disturb the
Labor Commission’s decision with respect to this argument.
D. Decades of Rowing Activities
¶18 Snyder contends the Labor Commission “erred in
allowing fabricated statements by ALJs . . . into the record, as
testimony, adding a contrived cause for Snyder’s right-shoulder
condition,” i.e., kayaking. Snyder takes issue with the language
of an interim order by the ALJ. He claims the evidence was
5. Snyder provides case law that defines “fraud” but does not
provide examples of it in his case, nor does he compare or
distinguish the facts of his case from the cited case law.
20160822-CA 9 2017 UT App 187Snyder v. Labor Commission
“manufactured,” “nowhere in the record,” and the medical
panel found kayaking “could only cause shoulder discomfort.”
These claims incorrectly characterize the record.
¶19 The Interim Order adopted language from the medical
panel report and the MRE that his kayaking activities
aggravated the pre-existing degeneration in his shoulder. There
is ample evidence in the record that contradicts Snyder’s
contention that the ALJ fabricated evidence that his kayaking
and rowing activities contributed to his degenerative arthritis
and thus independently created a new cause of the arthritis.
Snyder has not provided any legal authority to suggest that
adopting the statements from the MRE or the medical panel
report was an abuse of discretion. We conclude Snyder has not
met his burden of persuasion on this issue and decline to disturb
the Labor Commission’s decision with respect to this claim.
E. Holding Snyder to the Same Standard as a Member of the
Utah State Bar
¶20 Snyder contends the Labor Commission erred in holding
him to the same standard as a qualified member of the Utah
State Bar when it affirmed the ALJ’s refusal to read more than
five pages of his ten-page, single-spaced Objection to the
Medical Panel Report (Objection). Snyder argues that because
the first seven pages of his Objection were facts, the tribunal
never reviewed his arguments.
¶21 Under Utah Administrative Code R602-2-2(B)(2),
“[o]bjections shall not exceed 10 pages” and “shall be double
spaced.” Snyder has failed to provide us with an explanation as
to how his argument could have influenced the ALJ to refuse to
consider the medical panel report. Instead, Snyder merely
asserts that refusing to review the entire ten-page, single-spaced
Objection was an error.
20160822-CA 10 2017 UT App 187Snyder v. Labor Commission
¶22 We have reviewed all ten pages of his Objection and see
nothing in the remaining five pages that would have provided
the ALJ with a basis to refuse to consider the medical panel
report when determining whether Snyder was entitled to PPD
compensation. Instead, Snyder’s Objection consisted of the same
“bald citations to authority [without] development of that
authority and reasoned analysis based on that authority[,]” see
Bank of America, 2017 UT 2, ¶ 11 (citation and internal quotations
marks omitted), that he included in his briefing before this court.
We conclude he has not met his burden of persuasion on this
issue and decline to disturb the Labor Commission’s decision
with respect to this contention.
¶23 Ultimately, we conclude that Snyder’s inadequate briefing
resulted in a failure to meet his burden of persuasion and decline
to disturb the Labor Commission’s decision with respect to these
five contentions.
II. Sufficiency of the Evidence
¶24 Finally, Snyder contends there was insufficient evidence
to establish that his degenerative arthritis was not a result of the
accident. For this court to reverse, Snyder must show that the
findings of the causation of his injury “[are] not supported by
substantial evidence.” Hutchings v. Labor Comm’n, 2016 UT App
160, ¶ 23, 378 P.3d 1273. “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.” Id. ¶ 30.
¶25 Snyder sought PPD compensation for the “permanent
impairment caused by [the] industrial accident.” See Utah Code
Ann. § 34A-2-412(6)(a) (LexisNexis 2015). “[P]ermanent partial
disability compensation shall be awarded by the commission
based on the medical evidence.” Id.
20160822-CA 11 2017 UT App 187Snyder v. Labor Commission
¶26 To qualify for PPD compensation, “the claimant must
demonstrate (1) that the injury occurred ‘by accident’ and (2)
that the conditions and activities of the job were the cause of the
injury.” See Hutchings, 2016 UT App 160, ¶ 16 (citing Allen v.
Industrial Comm'n, 729 P.2d 15, 18 (Utah 1986)); accord Utah Code
Ann. § 34A-2-401 (LexisNexis 2015). “The key causation question
is whether, given this body and this exertion, the exertion in fact
contributed to the injury.” See Hutchings, 2016 UT App 160, ¶ 16
(citation and internal quotation marks omitted). The claimant
must show that this exertion was “both the legal cause and the
medical cause of the injury or disability.” Id.
¶27 To support a showing of legal cause, an employee’s
“usual or ordinary exertion, so long as it is an activity connected
with the employee’s duties, will suffice[.]” Price River Coal Co. v.
Industrial Comm’n of Utah, 731 P.2d 1079, 1082 (Utah 1986). Here,
the Labor Commission affirmed the ALJ’s determination that “a
hammer falling several stories and striking [Snyder] on the
shoulder [was] an activity that satisfie[d] the legal causation
standard.” Thus, legal causation is not at issue.
¶28 As to medical causation, “[u]nder the medical cause test,
the claimant must show by evidence, opinion, or otherwise that
the stress, strain, or exertion required by his or her occupation
led to the resulting injury or disability.” Allen, 729 P.2d at 27.
Because workers’ compensation claims require the
determination of medical causation, “the importance of
the . . . medical panel becomes manifest.” Id. (omission in
original) (citation and internal quotation marks omitted). “It is
through the expertise of the medical panel that the Commission
should be able to make the determination of whether the injury
sustained by a claimant is causally connected . . . [to] the
claimant’s employment.” Id. Absent a showing of “a medical
causal connection, compensation should be denied.” Id.
20160822-CA 12 2017 UT App 187Snyder v. Labor Commission
¶29 In this case, the ALJ referred Snyder’s medical records to
the medical panel to determine whether the hammer falling and
striking Snyder’s shoulder was the medical cause of his
degenerative arthritis. Under the Utah Administrative Code
R602-2-2(A)(1), a medical panel “will be utilized by the
Administrative Law Judge where one or more significant
medical issues may be involved. Generally a significant medical
issue must be shown by conflicting medical reports . . . [such as]
[c]onflicting medical opinions related to causation of the injury
or disease[.]” Here, Surgeon’s medical opinion regarding
causation conflicted with the medical opinions of Second
Physician and Third Physician, and thus the need for a “medical
panel [became] manifest.” See Allen, 729 P.2d at 27. Surgeon
attributed Snyder’s degenerative arthritis to the accident. On the
other hand, Second Physician and Third Physician each opined
that his degenerative arthritis was consistent with an elderly
man who worked in the iron industry for an extended period of
time with consistent, heavy, overhead work.
¶30 The medical panel reviewed all of Snyder’s medical
records related to his shoulder injury dating back to the accident
and determined that the accident was not the medical cause of
Snyder’s degenerative arthritis. The medical panel found that the
“mechanism of injury simply [was] not consistent with the
objective pathological findings in the right shoulder.” There was
“no evidence of sufficient traumatic exposure, with the
[accident] to the shoulder joint, to cause the degenerative
changes noted at [the first] surgery.” Rather, the “type and
degree of degenerative arthritis noted at his [first] surgery”
progress slowly over time and “would be more consistent with
heavy shoulder activity,” such as “decades [of work] as an iron
and steel worker,” which is “well known” to “cause substantial
shoulder problems over time and lead to impingement,” “wear
and tear,” and degenerative arthritis. In addition, the medical
panel found that his kayaking trips “aggravated his shoulder
pain” and that “[k]ayaking, raft rowing and similar activities are
20160822-CA 13 2017 UT App 187Snyder v. Labor Commission
known triggers for significant shoulder discomfort.” Ultimately,
the medical panel concluded that Snyder’s degenerative arthritis
was “due to factors other than the hammer incident.”
¶31 Substantial evidence supported the medical panel’s
finding that the accident was not the medical cause of Snyder’s
arthritis. See Hutchings, 2016 UT App 160, ¶ 23. The medical
panel found that the degree of degenerative changes in Snyder’s
shoulder discovered during his first surgery in 2001 “indicate[d]
longstanding, severe, age and activity related degenerative
arthritis.” The medical panel supported its findings by
discussing other factors that contributed to Snyder’s arthritis.
Snyder worked in the iron and steel industries for several
decades and his responsibilities involved extensive heavy,
overhead activity. And, although Snyder contests this finding
throughout his brief, there is substantial evidence to support that
his kayaking and rowing activities were factors that contributed
to his current diagnosis. His medical records reflect that at
nearly every appointment a physician would comment on his
passion for kayaking. And on at least two occasions, Snyder
informed the physician that a kayaking trip either “aggravated”
his shoulder pain or “stirred up the shoulder significantly.”
Snyder also postponed a complete shoulder replacement surgery
for over one year because “he ha[d] two more long rafting trips
that he want[ed] to get over and done with before he ha[d] any
further surgery.” Surgeon agreed to postpone the surgery
because he thought Snyder “would be pushing it a little bit to
think he [could] row the Grand Canyon just four months after a
total shoulder [replacement and] would be a bit concerned given
the vigorous nature of this activity.”
¶32 Although Surgeon opined in 2014 that Snyder’s “pain had
been progressive in nature and had worsened over time all due
to his original work injury to his shoulder,” there was
substantial evidence that supported the medical panel’s
determination that the accident was not the medical cause of his
20160822-CA 14 2017 UT App 187Snyder v. Labor Commission
degenerative arthritis. The Labor Commission found that the
minimal evidence that suggested the accident was the medical
cause of Snyder’s degenerative arthritis “[was] countered by the
preponderance of the evidence.” We agree and thus decline to
disturb the Labor Commission’s denial of Snyder’s request for
PPD compensation.
CONCLUSION
¶33 We conclude there was substantial evidence to support
the Labor Commission’s determination that the accident did not
cause Snyder’s degenerative arthritis and we therefore decline to
disturb the Labor Commission’s denial of Snyder’s PPD
compensation.
20160822-CA 15 2017 UT App 187