Macys Southtowne v. Labor Commission

2019 UT App 148
THE UTAH COURT OF APPEALS
M ACY ’ S S OUTHTOWNE C ENTER ,
Petitioner,
v.
LABOR C OMMISSION AND DIAHANN T. JENSEN ,
Respondents.
Opinion
No. 20180118-CA
Filed August 29, 2019
Original Proceeding in this Court
Theodore E. Kanell and Daniel E. Young, Attorneys
for Petitioner
Loren M. Lambert, Attorney for Respondent
Diahann T. Jensen
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES K ATE A PPLEBY and R YAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 	Macy’s 	Southtowne 	Center 	(Employer) 	petitions 	for
review 	of 	the 	Labor 	Commission’s 	preliminary 	award 	of
permanent total disability benefits in favor of Diahann T. Jensen
(Claimant). 	Employer 	challenges 	the 	Commission’s 	findings
regarding Claimant’s maximum medical improvement (MMI)
and her ability to perform other work reasonably available. We
conclude that substantial evidence supports the Commission’s
findings, and we therefore decline to disturb its order.
BACKGROUND
¶2 	Claimant sustained a lower-back injury while working as
a sales associate for Employer in April 2007. Claimant sought
treatment for her injury, and Employer accepted liability, paid

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her temporary total disability compensation, and agreed in 2008
to 	permanent 	partial 	disability 	compensation 	based 	on 	an
impairment rating of 13% of her lower back.
¶3 	Claimant returned to work in October 2012 and worked
for Employer for another month, but because she was “unable to
think clearly or perform the physical aspects of her job duties,”
she found “a more sedentary job” with another company from
December 2012 to July 2013. She could not continue in that
position, 	however, 	due 	to 	chronic pain 	and 	side 	effects 	of
medication.
¶4 	In 	2015, 	Claimant 	filed 	an 	application 	for 	a 	hearing,
seeking 	permanent 	total 	disability 	compensation. 	The
administrative law judge (ALJ) entered a preliminary award of
permanent 	total 	disability 	benefits 	to 	Claimant 	after 	an
evidentiary 	hearing. 	On 	Employer’s 	motion 	for 	review, 	the
Commission set aside the preliminary award and remanded the
matter for referral to a medical panel on the issue of Claimant’s
medical stability.
¶5 	The appointed medical panel, consisting of two experts in
occupational medicine, concluded that Claimant had reached
MMI, i.e., “medical stability from her work-related low-back
injury.” It explained that her condition “has been stable since
2015—after fusion and trial with spinal cord stimulator ended.”
After receiving this report, the ALJ again found that Claimant
was entitled to a preliminary award of permanent total disability
benefits. Employer filed another motion for review with the
Commission.
¶6 	The 	medical 	record 	before 	the 	Commission 	did 	not
contain treatment records pertaining to Claimant’s work injury
that predated 2012, but the Commission found evidence that
Claimant 	underwent 	a 	discectomy 	in 	2007. 	Claimant 	also
underwent fusion surgery involving hardware placement in
August 	2013 	and 	later 	underwent 	additional 	treatment 	to
address a mal-positioned screw and to remove the hardware

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fixation system. When Claimant continued to experience lower-
back pain, she had a spinal cord stimulator implanted in August
2014.
¶7 	Eight months later, a doctor (Doctor) assessed Claimant
with a 12% whole-person impairment rating for her lumbar-
spine fusion. On May 12, 2015, Doctor wrote a letter outlining
Claimant’s capacity and stating that Claimant had reached MMI.
On July 2, 2015, a physician assistant (Physician Assistant) for
Claimant’s surgeons stated that Claimant was unable to work
due to chronic lower-back pain. This was the earliest date in the
medical records that indicated Claimant could not work.
¶8 	In December 2015, Claimant’s functional capacity was
evaluated. The resulting evaluation showed that Claimant could
function only at “the sedentary physical-demand level for a
maximum of 0–3 hours per day and could sit, stand, and walk
on an occasional basis.” It also showed that she “was capable of
frequently reaching, gripping, writing, typing, and fingering, but
she was unable to complete any task in a constant capacity and
was limited to lifting no more than five pounds.”
¶9 	A 	consultant 	for 	Employer 	(Employer’s 	Expert) 	also
evaluated Claimant. He concluded that Claimant “could not
work because her restrictions would be excessive.” He also
opined that “there was no evidence of a stable lumbar-spine
fusion” 	in 	Claimant’s 	records, 	and 	he 	offered 	various,
unexplored 	“potential 	causative 	factors” 	for 	her 	condition.
Employer’s Expert also wrote a letter, dated March 13, 2016, in
which 	he 	explained 	that 	he 	was 	unwilling 	to 	declare 	that
Claimant had reached MMI “based on an absence of etiology for
the complaints secondary to her second postoperative course.”
¶10 	After considering the evidence and the medical panel
report concluding that Claimant reached MMI, the Commission
determined that Claimant was permanently and totally disabled.
Because MMI is a prerequisite to a finding of permanent total
disability, 	the 	Commission 	first 	had 	to 	determine 	whether

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Claimant had reached MMI. Although Claimant continued to
treat her lower-back injury, the Commission reasoned that MMI
“does not depend on whether [Claimant] receives treatment” but
instead “depends on whether she materially improves.” And
because Doctor and the medical panel both opined that Claimant
“has not seen and will not experience material improvement
regarding her work-related low-back condition after 2015,” the
Commission concluded that Claimant was “medically stable . . .
such that her claim for permanent disability benefits [was] ripe
for adjudication.”
¶11 	The Commission then evaluated whether Claimant had
demonstrated that she was permanently and totally disabled. See
Utah Code Ann. § 34A-2-413(1)(b)(ii) (LexisNexis Supp. 2018).1
As relevant here, the Commission evaluated whether Claimant
had met her burden to show that she “has an impairment or
combination of impairments that reasonably limit [her] ability to
do basic work activities.” See id. § 34A-2-413(1)(c)(ii). In so doing,
the Commission noted that Claimant was “severely restricted in
her ability to lift” and could engage in “only occasional walking,
standing, and sitting due to her low-back problems.” These
restrictions led the Commission to conclude that Claimant was
“not meaningfully able to perform the core tasks that are basic
prerequisites to employment” and that she had met her burden
on this element of her claim.
¶12 	The Commission also evaluated whether Claimant had
met her burden of showing that her lower-back impairment
prevented her from performing the essential functions of the
work activities for which she had been qualified until the 2007
work injury. See id. § 34A-2-413(1)(c)(iii). Though this element
typically requires the Commission to compare a claimant’s work
restrictions 	to 	the 	duties 	of 	her 	past 	employment, 	the
1. This statute has been amended since the relevant time, but
because these amendments are not material to our analysis, we
cite the current version of the statute.

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Commission found that Physician Assistant’s July 2015 opinion
that Claimant was unable to work, due to chronic lower-back
pain, was “strong,” uncontradicted evidence “sufficient to show
that [Claimant] cannot perform the work for which she was
qualified at the time of the accident.”
¶13 	The Commission next evaluated whether Claimant had
met her burden to establish that she cannot perform “other work
reasonably 	available” 	in 	light 	of 	her 	age, 	education, 	work
experience, and her medical and functional capacities. See id.
§ 34A-2-413(1)(c)(iv). 	The 	Commission 	noted 	that 	Claimant’s
functional capacity allowed her to “perform at the sedentary
physical-demand level for a maximum of 0–3 hours per day,”
and it cited Employer’s Expert’s opinion that Claimant “could
not 	work 	because 	her 	restrictions 	would 	be 	excessive” 	to
conclude that Claimant had met her burden on this element of
her claim as well.
¶14 	The Commission also addressed Employer’s contention
that no evidence supported the use of the date of July 2, 2015, as
the date for when Claimant became entitled to permanent total
disability benefits. The Commission explained that the date came
from Physician Assistant, who concluded that Claimant “was
unable to work as of that date.” The Commission also explained
that this date was “unchallenged in the medical record” because
even Employer’s Expert did not dispute that Claimant was
unable to work.
¶15 	Accordingly, the Commission affirmed the ALJ’s second
preliminary award of permanent total disability benefits, which
awarded Claimant benefits as of July 2, 2015. Employer now
seeks judicial review of the Commission’s order.
ISSUES AND STANDARD OF REVIEW
¶16 	On 	review, 	Employer 	asserts 	two 	errors 	in 	the
Commission’s 	order 	awarding 	permanent 	total 	disability

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benefits 	to 	Claimant. 	First, 	Employer 	contends 	that 	“the
Commission’s finding of maximum medical improvement is not
based on the medical evidence” and therefore is “not supported
by substantial evidence.” Second, Employer contends that the
Commission erred in finding that Claimant was unable perform
other work reasonably available because Claimant “did not
present any evidence of other work reasonably available and
whether she could perform that work.”
¶17 	This 	court’s 	authority 	to 	review 	the 	Commission’s
decision is derived from the Administrative Procedures Act.
Utah Code Ann. § 63G-4-403(1) (LexisNexis 2016); Provo City v.
Utah Labor Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242. That Act
provides, among other things, that we may grant relief if we
determine that the Commission “substantially prejudiced” a
petitioner by 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.” 	Utah 	Code 	Ann.
§ 63G-4-403(4)(g). A challenge to the Commission’s finding of
fact is reviewed for substantial evidence. See Provo City, 2015 UT
32, ¶ 8. In this case, both alleged errors amount to attacks on
factual 	determinations 	made 	by 	the 	Commission 	and 	are
therefore subject to substantial evidence review. See id. ¶¶ 12, 14
(stating that “whether an employee can perform other work
reasonably available . . . is a question of fact” and reviewing the
Commission’s finding on the issue for substantial evidence);
Griffith v. Industrial Comm’n of Utah, 754 P.2d 981, 983–84 (Utah
Ct. App. 1988) (explaining that “medical stabilization,” i.e., MMI,
“is a factual question to be determined by medical evidence
contained in the record” and considering whether substantial
evidence 	supported 	the 	Commission’s 	finding 	of 	medical
stabilization).
¶18 	“A decision is supported by substantial evidence if there
is a quantum and quality of relevant evidence that is adequate to
convince a reasonable mind to support a conclusion.” Provo City,
2015 UT 32, ¶ 8 (cleaned up). “In conducting a substantial
evidence 	review, 	we 	do 	not 	reweigh 	the 	evidence 	and

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independently choose which inferences we find to be the most
reasonable.” 	Id. 	(cleaned 	up). 	“Instead, 	we 	defer 	to 	[the
Commission’s] findings because when reasonably conflicting
views arise, it is the [Commission’s] province to draw inferences
and resolve these conflicts.” Id. (cleaned up).
ANALYSIS
I. Maximum Medical Improvement
¶19 	Employer 	challenges 	the 	Commission’s 	finding 	that
Claimant 	reached 	MMI, 	asserting 	that 	the 	Commission
improperly found Claimant’s MMI as of July 2, 2015. Employer
contends that “[t]here is no substantial evidence supporting this
finding because there was no evidence presented regarding
[Claimant’s] condition after removal of the spinal stimulator and
because the July 2, 2015 date for MMI is not supported by
substantial evidence.”
¶20 	Under 	Utah 	caselaw, 	“medical 	stabilization” 	or 	“the
MMI” is “the date that the period of healing has ended and the
condition of the claimant will not materially improve and is thus
the critical point for termination of temporary disability.” Bade-
Brown v. Labor Comm’n, 2016 UT App 65, ¶ 6 n.1, 372 P.3d 44
(cleaned up). “Once healing has ended, the permanent nature of
the claimant’s disability can be assessed and benefits awarded
accordingly.”2 Rekward v. Industrial Comm’n of Utah, 755 P.2d 166,
2. The purpose of temporary disability benefits is “to provide an
income for the injured party until [the party] is able to return to
work or to receive permanent disability benefits,” Reddish v.
Sentinel Consumer Products, 771 P.2d 1103, 1105 (Utah Ct. App.
1989); see also Booms v. Rapp Constr. Co., 720 P.2d 1363, 1366 (Utah
1986), whereas the purpose of permanent total disability benefits
is to compensate injured workers who cannot return to work, see
Utah Code Ann. § 34A-2-413 (LexisNexis Supp. 2018); see also
(continued…)

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169 (Utah Ct. App. 1988) (cleaned up). The concept of MMI is
“independent of” the claimant’s ability to return to work. Reddish
v. Sentinel Consumer Products, 771 P.2d 1103, 1104 (Utah Ct. App.
1989).
¶21 	On review, Employer first contends that Claimant had a
spinal stimulator removed after the March 22, 2016 hearing and
that “[w]ithout evidence of [Claimant’s] current condition after
removal of the spinal stimulator, the Commission cannot state
that the period of healing has ended.” The Commission rejected
this argument, reasoning that Claimant “may be considered
medically stable from her work injury even if she continues to
treat the injury but her condition does not materially improve.”
(Citing Booms v. Rapp Constr. Co., 720 P.2d 1363, 1366 (Utah
1986).) Because Doctor and the medical panel both opined that
Claimant 	“has 	not 	seen 	and 	will 	not 	experience 	material
improvement regarding her work-related low-back condition
after 	2015,” 	the 	Commission 	concluded 	that 	Claimant 	was
“medically 	stable.” 	Employer 	has 	not 	shown 	error 	in 	the
Commission’s reasoning.
¶22 	Second, Employer contends that although “[s]everal dates
for MMI are presented in the record,” “[n]one of them are July 2,
2015,” and that therefore “the Commission’s finding of MMI on
July 2, 2015 is not supported by substantial evidence.” Employer
further contends that the “Commission’s reliance on [Claimant’s]
inability to work to support a finding of MMI is erroneous”
because Claimant’s inability to work “has no bearing on whether
her period of healing has ended.”
(…continued)
Oliver v. Utah Labor Comm’n, 2017 UT 39, ¶ 16, 424 P.3d 22
(describing the “core question” for a permanent total disability
claim as “whether, notwithstanding his or her impairments, the
employee can participate in the workforce”).

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¶23 	We reject this argument because it rests on the flawed
premise that the Commission found that Claimant reached MMI
on July 2, 2015. To the contrary, the Commission found that
Claimant reached MMI in 2015 rather than specifically on July 2,
2015.
¶24 	We also agree with the Commission that Employer’s
argument about July 2, 2015, “pertains to the date on which
[Claimant’s] entitlement to permanent total disability benefits
would begin,” not to the date of MMI. In the Commission’s
decision, July 2, 2015, is the date when Claimant became entitled
to permanent total disability benefits. This decision relied on the
opinion of Physician Assistant, who concluded that Claimant
was unable to work as of July 2, 2015. We cannot fault the
Commission for using this date to start Claimant’s benefits. After
all, 	the 	permanent 	total 	disability 	statute 	requires 	that 	the
injured worker be unable to return to work. See Utah Code Ann.
§ 34A-2-413(1)(b)–(c) (LexisNexis Supp. 2018).
¶25 	We also conclude that the Commission’s determination
that Claimant had reached MMI as of 2015 is supported by
substantial evidence. As the Commission found, Doctor opined
in a letter, dated May 12, 2015, that Claimant had reached MMI,
and the medical panel determined that she had been “stable
since 	2015.” 	This 	evidence 	was 	“adequate 	to 	convince 	a
reasonable mind to support a conclusion” that Claimant had
reached MMI in 2015, and it was the Commission’s prerogative
to rely on Doctor’s and the medical panel’s opinions in making
its MMI finding. See Provo City v. Utah Labor Comm’n, 2015 UT 32,
¶ 8, 345 P.3d 1242 (cleaned up).
II. Other Work Reasonably Available
¶26 	Employer 	challenges 	only 	one 	element 	of 	Claimant’s
claim for permanent total disability benefits: whether she cannot
perform other work reasonably available. See generally Provo City
v. Utah Labor Comm’n, 2015 UT 32, ¶ 6, 345 P.3d 1242 (“[T]he
permanent total disability statute requires workers to prove six

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elements . . . .”). The “other work reasonably available” element
is established if the employee shows by a preponderance of the
evidence 	that 	“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.” Utah Code Ann.
§ 34A-2-413(1)(c)(iv) (LexisNexis Supp. 2018). The element “asks
if, 	given 	[the 	employee’s] 	limitations, 	there 	is 	any 	other
reasonably available work for the employee to do.” Oliver v. Utah
Labor Comm’n, 2017 UT 39, ¶ 16, 424 P.3d 22. A failure to prove
this (or any other) element defeats the claim for permanent total
disability benefits. See Provo City, 2015 UT 32, ¶ 6.
¶27 	According to Employer, Claimant “failed to present any
evidence” of “what work is or is not reasonably available” given
her ability “to do sedentary work for one to three hours a day.”
Employer asserts that the Commission’s finding on the “other
work reasonably available” element impermissibly relied on its
findings on another element of the claim, namely, the “basic
work activities” element, which “asks whether, irrespective of
specific employment prospects, the employee retains the core
functionality 	necessary 	to 	meaningfully 	participate 	in 	the
workforce.” Oliver, 2017 UT 39, ¶ 16; see also Utah Code Ann.
§ 34A-2-413(1)(c)(ii) (requiring proof, by a preponderance of the
evidence, that “the employee has an impairment or combination
of impairments that reasonably limit the employee’s ability to do
basic work activities”). Employer argues that the Commission
“speculated that because [Claimant] has significant impairments,
she also could not perform the duties that may be currently
available,” and that the “Commission had no foundation to
make this conclusion because no evidence was presented on
what jobs are currently available and what the duties are of
those jobs.”
¶28 	We agree with Employer that Claimant bore the burden
of proving this element of her permanent total disability claim
by a preponderance of the evidence. See Oliver, 2017 UT 39, ¶ 15.
The elements of that claim “are all specific inquiries into an

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employee’s 	ability 	to 	work” 	and 	seek 	to 	resolve 	whether,
notwithstanding impairments, the employee “can participate in
the workforce.” Id. ¶ 16. And while we agree with Employer that
satisfying one element of a permanent total disability claim
cannot automatically satisfy another element, see id. ¶ 26, we
disagree with Employer’s suggestion that evidence relevant to
one element cannot be relevant to another element. Indeed, our
supreme court has explained that the “basic work activities” and
“other work reasonably available” elements are related and that
both are met “only if an employee suffers from some limitation
on the ability to do some common workplace activity.” Id.
¶29 	Contrary to Employer’s contention, we also conclude that
the 	record 	contains 	substantial 	evidence 	to 	support 	the
Commission’s determination that Claimant proved she cannot
perform other work reasonably available. To begin, we note that
“the burden of proof on this element requires an employee to
prove a negative,” and the Utah Supreme Court has stated that
in such circumstances “the employee’s burden of production is
not high.” Id. ¶ 56. Regarding the “other work reasonably
available” element, the court has also instructed that “evidence
of the extent of an employee’s impairment, when combined with
the 	Labor 	Commission’s 	good 	common 	sense 	and 	general
understanding of the job market, will often be enough to satisfy
the employee’s burden of proof on this element.”3 Quast v. Utah
Labor Comm’n, 2017 UT 40, ¶ 27, 424 P.3d 15.
3. Employer suggests that this statement in Quast is dicta and “is
not 	controlling 	in 	this 	case.” 	But 	the 	Utah 	Supreme 	Court
appears 	to 	have 	deliberately 	made 	this 	statement 	“for 	the
guidance of the bench and bar” on a point of law, and it is
therefore judicial dicta, which we are obligated to follow. See
Ortega v. Ridgewood Estates LLC, 2016 UT App 131, ¶ 14 n.4, 379
P.3d 18. We reject Employer’s suggestion that Quast is not
controlling.

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¶30 	Here, the Commission considered the extent of Claimant’s
impairment. For instance, the results of her functional capacity
evaluation showed that she could “perform at the sedentary
physical-demand level for” only “a maximum of 0–3 hours per
day.” 	See 	Utah 	Code 	Ann. 	§ 	34A-2-413(1)(c)(iv)(E). 	This
evaluation also showed that she was “unable to complete any
task 	in 	a 	constant 	capacity.” 	Significantly, 	even 	Employer’s
Expert recognized that Claimant “could not work because her
restrictions would be excessive.”
¶31 	The 	Commission 	also 	made 	findings 	regarding
Claimant’s age, education, and past work experience. See id.
§ 34A-2-413(1)(c)(iv)(A)–(C). For example, it found that Claimant
returned to work for Employer in October 2012, but because she
was “unable to think clearly or perform the physical aspects of
her job duties,” she found “a more sedentary job” with another
company from December 2012 to July 2013. It also found that
due to “concentration problems brought on by her medication
and chronic pain,” she “could not continue in that position.”
Employer has not challenged these findings. Additionally, the
Commission 	had 	before 	it 	Claimant’s 	testimony. 	Claimant
testified that she had “applied numerous places” after July 2013
but that she could not conceive of any full-time jobs that she
could now perform.
¶32 	Given 	this 	evidence 	of 	Claimant’s 	impairment, 	work
history, 	and 	attempts 	to 	return 	to 	the 	workforce, 	the
Commission could reasonably combine its consideration of this
evidence 	with 	its 	“good 	common 	sense 	and 	general
understanding of the job market” to find that Claimant could not
perform the duties of any jobs that may be reasonably available.
See Quast, 2017 UT 40, ¶ 27. On this record, we thus conclude
that “a reasonable mind might accept as adequate the evidence
supporting the [Commission’s] decision” that Claimant had met
her burden of production on this element. See id. ¶ 15 (cleaned
up).

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CONCLUSION
¶33 	Substantial evidence supports the Commission’s findings
regarding Claimant’s MMI and her inability to perform other
work reasonably available. We therefore do not disturb 	its
preliminary 	award 	of 	permanent 	total 	disability 	benefits 	to
Claimant.