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SWIFT TRANSPORTATION and Ace American Insurance, Petitioners, v. LABOR COMMISSION and Paul McClendon, Respondents

Utah Court of Appeals2014-05-08No. No. 20130507-CA
326 P.3d 6782014 UT App 104

Authorities cited

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Opinion

majority opinion

Memorandum Decision

CHRISTIANSEN, Judge:

T1 Swift Transportation and its insurer, Ace American Insurance, petition for judicial review of a Labor Commission decision awarding permanent total disability benefits to Paul McClendon. Because Swift has not shown that the Commission erred in determining that McClendon is permanently and totally disabled, we decline to disturb the Commissions order.

{2 McClendon was injured on October 4, 2008, while inspecting a refrigerated truck container. To check the refrigerant level, McClendon had climbed some six feet off the ground on a ladder to access the refrigeration unit located on the outside of the container. As McClendon was checking the sight glass that indicated the refrigerant level, the glass blew out, and he was hit in the face with a spray of refrigerant and oil. The force of the blowout knocked MeClendon to the ground, where he landed on a pile of metal.

T3 McClendon was treated that same day for exposure to the refrigerant and injuries from his fall. He was seen three days later by his primary-care physician, complaining of headaches, memory loss, poor balance, neck stiffness, numbness in his fingers, and pain in his left knee. He was diagnosed with a concussion and further treated for exposure to the refrigerant. McClendon attempted to return to work shortly after the accident, but he suffered a blackout while driving and was released from work by his physician. McClendon continued to seek treatment for both his physical injuries and his cognitive difficulties.

{ 4 In July 2009, McClendon underwent a medical evaluation at Swifts request. He was diagnosed with headaches related to the industrial accident and chronic cervical spine pain. The evaluating doctor found no evidence of cognitive dysfunction and did not attribute McClendons other conditions to the industrial accident The doctor deemed McClendon medically stable, and McClendon returned to light-duty work. However, he had difficulty performing his work, including working on the computer and completing paperwork. On September 9, 2009, Swift terminated McClendon because he could no longer perform his job.

T5 After his termination, McClendon filed an application with the Commission for permanent total disability benefits. MecClen-dons primary-care physician performed an evaluation of McClendons mental residual functional eapacity. That evaluation identified numerous cognitive difficulties, including severe limitations on MeClendons ability to carry out instructions, maintain attention and concentration for extended periods, and travel in unfamiliar places. Another doctor performed an assessment of McClendons physical residual functional capacity. Based on that assessment, the doctor recommended physical restrictions, including not frequently lifting more than ten pounds and not sitting or standing more than six hours in a workday. McClendon was given a 10% whole person impairment rating as a result of his cognitive difficulties and a 5% whole person impairment rating as a result of his physical injuries. McClendons primary-care physician opined that MeClendon could not return to work given his physical restrictions and cognitive difficulties. Swift also hired a doe-tor to perform a medical evaluation of McClendon. That doctor attributed the majority of McClendons difficulties to preexisting conditions, questioned whether McClen-don had experienced an industrial accident at all, and opined that McClendon was capable of returning to work subject to some lifting restrictions.

T6 Because of the conflicting medical evidence, the administrative law judge assigned to consider the claim (the ALJ) referred the medical issues to a medical panel. After examining McClendon and reviewing his medical history, the medical panel opined that McClendon had preexisting cognitive difficulties unrelated to the accident, but that his problems with perceptual organization and intermittent lapses in attention are likely to have been exacerbated on a permanent basis by the industrial injury. The panel also opined that the accident may have permanently aggravated a preexisting cervical spine condition and that there was therefore a demonstrable causal connection between the accident and McClendons cervical spine condition and left extremity numbness and pain. The panel ultimately attributed to the accident a 8% whole person impairment due to McClendons cognitive impairment and a 3% whole person impairment due to his cervical condition. After receiving the medical panels report, the ALJ found that McClen-don was permanently and totally disabled as a result of the accident and ordered Swift to pay benefits to McClendon. Swift moved the Commission for review of the ALJs order. The Commission adopted the ALJs findings of fact and affirmed the ALJs determination that McClendon was permanently and totally disabled. Swift now seeks judicial review of that order.

T7 To establish entitlement to permanent total disability benefits based on an industrial accident, an employee must demonstrate that the employee sustained a significant impairment or combination of impairments as a result of the industrial accident, that the employee now has a permanent total disability, and that the industrial accident is the direct cause of the permanent total disability. Utah Code Ann. § 34A-2-418(1)(b) (Lexis-Nexis 2011). And to show the existence of a permanent total disability, the employee must prove (1) that the employee is not gainfully employed; (2) that the employee has impairments that limit the employees ability to do basic work activities; (8) that industrially or occupationally caused impairments prevent the employee from performing the essential functions of the work for which the employee was qualified before the accident; and (4) that the employee cannot perform other work reasonably available. Id. § 84A-2-418(1)(c). Swift challenges only the Commissions findings that McClendons impairments limit his ability to perform basic work activities and that his work-related impairments prevent him from performing the essential functions of the work he performed before the accident.

18 We will not disturb the Commissions factual findings unless the party challenging the findings demonstrates that a finding is not supported by substantial evidence. See Murray v. Labor Commn, 2013 UT 38, ¶ 19, 308 P.3d 461; see also Utah Code Ann. § 63G-4-4083(4)(g) (LexisNexis 2011) (permitting an appellate court to grant relief if an agency finding of fact is not supported by substantial evidence). To sue-cessfully challenge the Commissions factual findings, a party must generally marshal all record evidence that supports the challenged finding and then demonstrate how that evidence is inadequate to support the finding. See Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-Day Saints, 2007 UT 42, ¶ 17, 164 P.3d 384. Swift has not done so. Notably absent from Swifts briefing is any mention of the examinations performed by McClendons primary-care physician or other doctors indicating that McClendon experienced physical and cognitive impairment. Rather, Swift mentions only the results of its own evaluation of McClendon and those parts of the medical panels report that support its position. Swift has not acknowledged and rebutted the evidence supporting the Commissions findings and has failed to demonstrate how that evidence is inadequate.

19 Instead, Swifts argument to this court is that the Commission improperly substituted its opinion of the medical evidence for the report of the medical panel, which Swift asserts clearly supported a finding that MeClendon was not permanently and totally disabled. We first note our disagreement with Swifts contention that the Commissions finding is directly inconsistent with the medical panels report. The panel recognized that McClendons cervical spine condition and certain cognitive difficulties had been permanently aggravated by the accident. And while the panel opined that, standing alone, the residual effects of McClendons concussion would result in very few work restrictions, it did not opine that such restrictions would not limit McClendons ability to perform basic or essential work functions. Thus, the panel report itself did not preclude a finding that McClendon was permanently and totally disabled.

110 Moreover, even if the Commissions findings were inconsistent with the medical panels report, the Commission, not the medical panel, is the ultimate fact finder. See Johnston v. Labor Commn, 2013 UT App 179, ¶ 23, 307 P.3d 615. Accordingly, the Commission is not bound by the opinions contained in the medical panels report and may weigh the report against the other evidence before it in arriving at its findings. Id. Even if we were to conclude that the medical panels report did not support a finding that McClendon was permanently and totally disabled, there was sufficient other evidence before the Commission on which to base such a finding. At its core, Swifts argument is simply an invitation for this court to reweigh the evidence presented to the Commission and find that [McClendon] is not permanently and totally disabled. We will not do so. See Migliaccio v. Labor Commn, 2013 UT App 51, ¶ 7, 298 P.3d 676 (It is not the role of this court to reweigh the evidence and substitute our conclusion for that of the Commission. (citation and internal quotation marks omitted)).

1 11 Swift has failed to show that the Commissions factual findings are not supported by substantial evidence or to identify any other error in the Commissions determination that McClendon is permanently and totally disabled. Accordingly, we decline to disturb the Commissions order.

. In reviewing the decision of the Commission, we view the facts in the light most favorable to the Commissions findings. Entwistle Co. v. Wilkins, 626 P.2d 495, 498 (Utah 1981). Due to McClendons preexisting conditions and the extensive medical records presented in the record, we discuss only those injuries and medical diagnoses necessary to understand the issues presented.

. We find ourselves somewhat perplexed by Swifts argument that it is improper for the Commission to disregard a medical panels report. In the proceedings before the ALJ, Swift objected to the medical panels report. Swift argued not only that the ALJ could have disregarded the medical panels report, but that the ALJ should have disregarded the medical panels report.