C.R. England v. Labor Commission

2023 UT App 40THE UTAH COURT OF APPEALS
C.R. ENGLAND INC., INDEMNITY INSURANCE CO. OF NORTH
AMERICA, AND ACE INDEMNITY INSURANCE CO.,
Petitioners,
v.
LABOR COMMISSION AND SUZI POYFAIR,
Respondents.
Opinion
No. 20210819-CA
Filed April 20, 2023
Original Proceeding in this Court
Christin Bechmann, Attorney for Petitioners
Richard R. Burke, Attorney for
Respondent Suzi Poyfair
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 C.R. England Inc., Indemnity Insurance Co. of North
America, and ACE Indemnity Insurance Co. (collectively, C.R.
England) petition for judicial review of the Labor Commission’s
decision overruling, in part, C.R. England’s objection to the
medical panel’s report relating to Suzi Poyfair’s industrial injury.
We decline to set aside the Board’s decision.
BACKGROUND
¶2 Poyfair suffered a work-related injury and sought workers’
compensation benefits. To help reach a decision on Poyfair’s
workers’ compensation claim, the administrative law judge (ALJ)
assigned to the case referred the matter to a medical panel. In its
C.R. England Inc. v. Labor Commission
report, the medical panel stated that it had “reviewed all
the [medical] records provided.” The provided medical records
included a report from C.R. England’s medical examiner, Dr.
Theiler, in which he opined that there was “no reason
why [Poyfair] could not stand, sit, and walk eight hours”
and “return to work in a sedentary capacity of 40 hours plus a
week.”
¶3 Contrary to Dr. Theiler’s opinion, however, the medical
panel opined, “[I]n her current state [Poyfair] has a temporary
inability to perform basic work. She is limited in her ability to
remain at work through the day, and has a decreased degree of
flexibility, strength, and endurance.” The medical panel further
opined that “with continued treatment [Poyfair] should be able to
return to basic work activities” and provided a list of treatment
recommendations, which included cognitive behavioral therapy.
The medical panel did not specifically discuss Dr. Theiler’s report
or explain its disagreement with that report.
¶4 C.R. England objected to the medical panel’s report on
several grounds, including that the panel had not adequately
supported its recommendation for cognitive behavioral therapy
and that it should have discussed Dr. Theiler’s report and
explained its reasoning for rejecting it.1 The ALJ overruled these
objections and admitted the report into evidence. C.R. England
filed a motion for review with the Appeals Board, which also
rejected C.R. England’s arguments on these points. C.R. England
now petitions this court for review of that decision.
1. C.R. England made additional objections to the report, one of
which was sustained by the ALJ and one of which was sustained
by the Appeals Board. As a result, several aspects of the medical
panel’s report were disregarded. However, these other objections
are not at issue on appeal, so we do not discuss them further.
20210819-CA 2 2023 UT App 40C.R. England Inc. v. Labor Commission
ISSUE AND STANDARD OF REVIEW
¶5 C.R. England challenges the Appeals Board’s decision
overruling its two objections to the medical panel’s report
discussed above. “We review the [Labor] Commission’s refusal to
exclude a medical panel report . . . under an abuse of discretion
standard, providing relief only if a reasonable basis for that
decision is not apparent from the record.” Bade-Brown v. Labor
Comm’n, 2016 UT App 65, ¶ 8, 372 P.3d 44 (quotation simplified).
ANALYSIS
¶6 In support of its recommendation of cognitive behavioral
therapy, the medical panel stated its belief that “[c]ognitive
behavioral therapy . . . may be beneficial” to Poyfair. C.R. England
asserts that the medical panel’s use of the word “may” indicates
that its “recommendation was not made to the standard of
reasonable medical probability” and could therefore not support
a finding that the treatment was medically necessary to treat
Poyfair’s work injuries. However, a medical panel’s use of terms
such as “may” and “possible” in relation to a particular aspect of
its report does not necessarily indicate that its conclusions are
based on a mere “possibility” as opposed to a “medical
probability.” See Danny’s Drywall v. Labor Comm’n, 2014 UT App
277, ¶¶ 16–17, 339 P.3d 624. We therefore must read the report “as
a whole” to determine whether a medical panel’s opinion is based
on its “assessment of medical probability.” See id. ¶ 17. Here, the
medical panel indicated that its recommendations were “evidence
based” and developed in consultation with “the American
College of Occupational Medicine Guidelines ‘Treatment of
Chronic Pain.’” It further opined that its “treatment
recommendations” would help to improve Poyfair’s “chronic
pain” and enable her “to return to basic work activities.” In
explaining the need for cognitive behavioral and other
recommended therapies, the medical panel explained that “[n]o
20210819-CA 3 2023 UT App 40C.R. England Inc. v. Labor Commission
single intervention or treatment is likely to be effective in patients
with chronic low back pain” and that “[i]n the presence of
disabling chronic pain, it is important . . . to understand that the
pain has a biologic basis . . . but functional rehabilitation will aid
in normalizing pain signaling.” Considering the medical panel’s
recommendation in context, we agree with the Appeals Board that
the panel’s report supported its recommendation of cognitive
behavioral therapy to a reasonable medical probability.
¶7 C.R. England next challenges the medical panel’s report on
the ground that the medical panel did not explicitly address Dr.
Theiler’s opinion that Poyfair was capable of returning to work.
However, C.R. England cites no authority in support of its
assertion that the medical panel was required to discuss Dr.
Theiler’s conclusions in its report, nor do we see why such a
requirement would be necessary.2 The medical panel indicated
that it had reviewed the entire medical record, and there is no
reason to doubt that it did. The medical panel may have bolstered
its conclusions by explaining its disagreement with Dr. Theiler in
more detail, but its failure to do so certainly does not
fundamentally undermine the value of its independent opinions.
Ultimately, a “medical panel’s role is to assist the Commission by
evaluating medical evidence and advising the Commission with
respect to its ultimate fact-finding responsibility.” Bade-Brown v.
Labor Comm’n, 2016 UT App 65, ¶ 12, 372 P.3d 44 (quotation
simplified). In reviewing the evidence, the ALJ must “consider not
2. C.R. England also does not discuss what the parameters of such
a rule would look like. In other words, how much discussion or
analysis of a contrary opinion would be necessary for the medical
panel’s report to be adequate? We see no reason to open the
floodgates of litigation by adopting a rule that—given the medical
panel’s limited role as a provider of evidence rather than a
decision maker—would have little real impact on the outcome of
workers’ compensation claims.
20210819-CA 4 2023 UT App 40C.R. England Inc. v. Labor Commission
only the report of the medical panel, but also all of the other
evidence.” Id. ¶ 13 (quotation simplified). In other words, the ALJ
was still bound to consider Dr. Theiler’s report, which she did,3
regardless of whether the medical panel discussed it. The Appeals
Board therefore did not exceed its discretion in overruling C.R.
England’s objection to the medical panel’s report.
CONCLUSION
¶8 Because we agree with the Labor Commission that the
medical panel adequately supported its finding regarding the
need for cognitive behavioral therapy and that it was not required
to explain its disagreement with Dr. Theiler’s report, we decline
to set aside the Labor Commission’s decision to overrule C.R.
England’s objections.4
3. Specifically, the ALJ found that “Dr. Theiler’s opinion [was]
outweighed by the unanimity of” two other treating physicians
and the medical panel.
4. Poyfair argues that she should be awarded her costs and fees
under rule 33 of the Utah Rules of Appellate Procedure. While we
ultimately resolve this matter in Poyfair’s favor, we do not find
C.R. England’s arguments to rise to the level of a frivolous appeal
as contemplated in rule 33. We therefore deny Poyfair’s request
for attorney fees.
20210819-CA 5 2023 UT App 40