Hospital Housekeeping Systems v. Labor Commission

2023 UT App 90

THE UTAH COURT OF APPEALS

HOSPITAL HOUSEKEEPING SYSTEMS AND SAFETY NATIONAL
CASUALTY CORPORATION,
Petitioners,
v.
LABOR COMMISSION AND LETICIA RUEDA VARGAS,
Respondents.

Opinion
No. 20220191-CA
Filed August 17, 2023

Original Proceeding in this Court

Brad J. Miller and Rachel M. Konishi,
Attorneys for Petitioners
Jose A. Loayza, Attorney for Respondent
Leticia Rueda Vargas

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.

TENNEY, Judge:

¶1 In May 2017, Leticia Rueda Vargas injured her knee at
work while employed by Hospital Housekeeping Systems
(HHS). 1 HHS later refused to pay for some of Vargas’s treatments,
0F

so Vargas filed a claim with the Labor Commission. During the
ensuing litigation, an administrative law judge (the ALJ) ordered

1. The record contains references to both “Leticia Rueda Vargas”
and “Leticia Vargas Rueda.” The appellate briefing uses the
former, so for purposes of this opinion, we’ll refer to her as
“Vargas.”
Hospital Housekeeping v. Labor Commission

HHS to cover “all future medical expenses necessary to treat”
Vargas’s injury. HHS did not challenge that order.

¶2 A few years later, HHS refused to pay for an injection that
a doctor recommended as part of Vargas’s ongoing treatment,
claiming that Vargas’s continued knee pain was not caused by the
workplace accident. The ALJ disagreed and ordered HHS to pay
for the injection, and the Labor Commission subsequently
affirmed that decision. HHS now appeals. For the reasons set forth
below, we decline to disturb that decision.

BACKGROUND

The Work Injury & Early Treatment

¶3 Vargas was employed by HHS as a housekeeper at Tooele
Hospital. During a shift in May 2017, Vargas was changing the
linens on a hospital bed when the bed suddenly rolled forward
and hit the wall, causing the corner of the bed to impact Vargas’s
left knee. Vargas went to the emergency room later that day,
where she presented with “a contusion, decreased range of
motion, pain[] that is acute, swelling, [and] tenderness” in her left
knee. A week later, Vargas returned to the emergency room and
was diagnosed with an infected patellar bursa in her left knee.

¶4 Over the next several months, Vargas sought treatment for
her ongoing knee pain from various providers, including physical
therapists and orthopedic specialists. In November 2017, Vargas
was evaluated by Dr. Mark Anderson, a medical consultant
retained by HHS. Dr. Anderson concluded that “the work
accident medically caused [Vargas’s] traumatic pre-patellar
bursitis in her left knee that had not reached medical stability.”

¶5 Vargas continued receiving treatment for her ongoing knee
trouble. In May 2018, Vargas had an MRI of her left knee, which
revealed “grade 2 patellofemoral chondromalacia, trace joint

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effusion,” “[s]uperficial and deep infrapatellar bursitis,” “[m]ild
distal patellar tendinosis,” and “[s]emimembranosus and pes
anserine bursitis.” These diagnoses had not been noted
previously. In August 2018, a provider who had worked with
Vargas since her injury opined that Vargas had now “failed all
conservative treatment options.” The provider recommended “a
left knee shaving chondroplasty, synovectomy, and possible
partial medial/lateral meniscectomy.”

Case 18-0680

¶6 In October 2018, Vargas filed an application for a hearing
with the Labor Commission (which was then captioned as case
18-0680) because of a dispute with HHS about its obligation to
cover the costs of her ongoing treatment.

¶7 In January 2019, Vargas was evaluated by Dr. Anthony
Theiler, another medical consultant retained by HHS. Dr. Theiler
concluded that Vargas could “be deemed maximally medically
improved as it relates to the incident in question.” He further
opined that “no further medical care was required and that
[Vargas] had required treatment on an industrial basis only
through mid-July 2017.”

¶8 Given the conflicting evidence regarding causation, the
ALJ referred the matter to a medical panel. See Utah Admin. Code
R602-2-2; Utah Code § 34A-2-601; Brown & Root Indus. Service v.
Industrial Comm’n of Utah, 947 P.2d 671, 677 (Utah 1997). In August
of 2019, a medical panel consisting of Dr. Matthew Hughes and
Dr. Jeremy Biggs evaluated Vargas and reviewed her claim. This
panel subsequently provided a report in which it concluded that
Vargas “ha[d] not reached MMI [maximum medical
improvement], as she would likely benefit from additional
conservative measures, or may benefit from a surgical excision of

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the chronically inflamed bursa.” 2 The medical panel
1F

recommended that Vargas see Dr. Travis Maak, an orthopedic
surgeon, based on his conservative treatment approach. In a later
follow-up, the medical panel noted that “[i]n some cases,
recalcitrant chronic knee bursitis may be treated with surgery to
remove the bursa (excision of bursa, bursectomy).”

¶9 Vargas followed the medical panel’s recommendation and
met with Dr. Maak in December 2019 for an evaluation. In his
progress notes from that visit, Dr. Maak noted that he believed “a
non-operative approach” to treatment of Vargas’s left knee was
“the best option,” but he also recognized “the potential need for
arthroplasty in the future.” Vargas subsequently continued
receiving treatment from Dr. Maak.

¶10 In July 2020, the ALJ issued a decision in case 18-0680 in
which she found that Vargas’s “industrial accident was the
medical cause of a left knee contusion and an injury to the patellar
bursa of the left knee, which remained symptomatic.” The ALJ
also found that Vargas’s industrial accident met the standard for
legal causation. The ALJ awarded Vargas coverage for “all future
medical expenses necessary to treat [her] May 4, 2017, industrial
injuries, including evaluation by an orthopedic surgeon.” HHS
did not appeal or administratively challenge that decision.

2. By “MMI,” the medical panel was likely referring to “maximum
medical improvement,” which is a common term used in
disability claims. See, e.g., Massengale v. Labor Comm’n, 2020 UT
App 44, ¶ 7, 462 P.3d 417; see also Macy’s Southtowne Center v. Labor
Comm’n, 2019 UT App 148, ¶ 20, 449 P.3d 998 (noting that MMI is
understood to be “the date that the period of healing has ended
and the condition of the claimant will not materially improve”
(quotation simplified)).

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Case 20-0785

¶11 Sometime after the decision was issued in case 18-0680, Dr.
Maak opined that Vargas “ha[d] reached MMI at this time.”
Vargas continued receiving treatment from Dr. Maak, however,
and in November 2020, Dr. Maak noted that Vargas

was seen in my office today for a scheduled
appointment to follow up her ongoing knee pain.
Upon review at her appointment today, it was
decided that we would not proceed with another
cortisone shot as she did not get relief with it but
instead we will try and get a Synvisc One injection
approved with workers compensation and see if she
gets better relief with that.

After HHS refused to pay for the Synvisc injection, Vargas filed
another application with the Labor Commission, which was
captioned as case 20-0785.

¶12 In April 2021 (and apparently at the request of HHS), Dr.
Theiler revisited his 2019 evaluation. Although Dr. Theiler had
not met with Vargas a second time, he reviewed her updated
medical records and issued an amended report in which he
opined that “there is absolutely no basis for any further treatment
for an anterior left knee contusion.” A few months later, HHS sent
Dr. Maak a copy of Dr. Theiler’s amended report with a cover
sheet that asked Dr. Maak to choose “yes” or “no” in response to
the question: “After reviewing Dr. Theiler’s opinion, do you agree
that [Vargas’s] underlying degeneration is not related to the work
event of May 4, 2017?” Dr. Maak marked “yes.” Dr. Maak then
wrote a letter of his own, in which he stated that “[t]he fact that
[Vargas] has continued pain for over two years after the initial
injury suggests that her current symptomology is likely unrelated
to the original accident.”

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¶13 In August 2021, the ALJ held a hearing for case 20-0785 at
which Vargas and HHS presented arguments about whether HHS
should pay for the Synvisc injection. In September 2021, the ALJ
issued an order resolving the dispute. With respect to the
causation question, the ALJ held that the prior causation
adjudication from case 18-0680 was the “law of the case” here. The
ALJ said that she was

at a loss to understand why [HHS] has engaged Dr.
Maak in a discussion of medical causation and
retained Dr. Theiler to reiterate his opinions
regarding medical causation. The Court has already
ruled that [Vargas’s] left knee injury is industrially
caused, and that ruling has not been overturned. If
the Court erred by failing to state explicitly that the
injury included both chondromalacia and bursitis as
found on [the] MRI, the Court corrects that error
now. There has been no significant change in
circumstances that would justify review of
[Vargas’s] award of benefits in this matter.

In an apparent reference to Dr. Maak’s plan for a Synvisc injection,
the ALJ then ordered HHS to “pay for [Vargas’s] continued care
with Dr. Maak or other orthopedic surgeon,” and she further
ordered that if “conservative care fails to improve [Vargas’s] left
lower extremity functionality and her chronic pain, [HHS] shall
pay for surgery as recommended by [Vargas’s] orthopedic
surgeon.”

¶14 HHS petitioned for review with the Labor Commission. In
January 2022, the Labor Commission issued an order affirming
the ALJ’s decision. Consistent with the approach taken by the ALJ,
the Labor Commission ruled that the prior medical panel’s
“opinion on the extent of [Vargas’s] work injury was adopted by”
the ALJ in the earlier case “and represents the law of the case.”
The Labor Commission further concluded that case 18-0680’s

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“award of future medical care became a final order of the [Labor
Commission], which represents the law of the case in this matter.”
And the Labor Commission agreed with the ALJ that HHS’s
“attempt to reopen the issue by offering a reiterated opinion from
Dr. Theiler and an opinion from Dr. Maak regarding medical
causation [did] not warrant a change in the award of benefits to
[Vargas] from case number 18-0680.” The Labor Commission
accordingly “concur[red]” with the ALJ’s “order in the present
matter outlining the award of benefits to [Vargas] for her work-
related left-knee injury.”

¶15 HHS now seeks judicial review of the Labor Commission’s
decision.

ISSUES AND STANDARDS OF REVIEW

¶16 HHS first argues that the Labor Commission had an
insufficient basis for ordering it to pay for Vargas’s ongoing
treatments for her knee injury. HHS suggests that its challenge is
legal in nature, but as explained below, we view HHS’s argument
as being factual in nature. As a result, we review it “under the
substantial evidence standard of review, examining the whole
record to determine whether a reasonable mind might accept as
adequate the evidence supporting the decision.” Quast v. Labor
Comm’n, 2017 UT 40, ¶ 15, 424 P.3d 15 (quotation simplified).

¶17 HHS next argues that the Labor Commission lacked
authority to order “benefits not requested by” Vargas in the most
recent case—namely, anything beyond a Synvisc injection. To the
extent that HHS is challenging the Labor Commission’s authority
to order this particular remedy, this challenge presents a legal
question that is reviewed for correctness. See White v. Labor
Comm’n, 2020 UT App 128, ¶ 11, 474 P.3d 493.

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ANALYSIS

¶18 A Utah employee must be compensated for an injury
“arising out of and in the course of the employee’s employment,
wherever such injury occurred, if the accident was not purposely
self-inflicted.” Utah Code § 34A-2-401(1). “[A]n employee is
entitled to be compensated for a medical expense” if the “medical
expense is[] (A) reasonable in amount . . . and (B) necessary to treat
the industrial accident.” Id. § 34A-2-417(1)(a)(i). “[T]here must be
a nexus between the accident and the injury for which treatment
is sought.” Petersen v. Labor Comm’n, 2016 UT App 222, ¶ 18, 385
P.3d 759.

¶19 HHS challenges the Labor Commission’s decision on two
grounds: first, HHS argues that there was an insufficient basis for
concluding that Vargas’s workplace accident caused her ongoing
knee pain; and second, HHS argues that the Labor Commission
should have limited its ruling to an order of payment for the
Synvisc injection.

I. Causation

¶20 HHS first argues that because it presented evidence from
Drs. Theiler and Maak suggesting that Vargas’s workplace
accident had not caused her ongoing knee pain, and because
Vargas presented no contrary evidence in case 20-0785, the Labor
Commission “had no other choice but to deny the request for the
[S]ynvisc injection and related medical care.” We disagree for
several reasons.

¶21 First, the Labor Commission regarded HHS’s arguments as
an attempt to reargue the question of whether Vargas was injured.
So viewed, and echoing a similar decision from the ALJ earlier,
the Labor Commission concluded that the causation
determination from case 18-0680 constituted the “law of the case”
on that same question for case 20-0785. This application of the law

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of the case doctrine appears to have been the primary basis for the
Labor Commission’s decision on causation.

¶22 But HHS does not meaningfully challenge this in its
opening or reply brief—indeed, the phrase “law of the case” does
not even appear in either of its briefs. This matters. After all,
appellate courts “will not reverse a ruling of [a lower tribunal]
that rests on independent alternative grounds where the
appellant challenges only one of those grounds.” Howick v. Salt
Lake City Corp., 2018 UT 20, ¶ 11, 424 P.3d 841 (quotation
simplified); see also Kendall v. Olsen, 2017 UT 38, ¶ 9, 424 P.3d 12
(concluding that because the appellant “failed to challenge . . . an
independent basis for the dismissal of the case,” the supreme
court had “no choice except to affirm”); Gines v. Edwards, 2017 UT
App 47, ¶ 32, 397 P.3d 612 (concluding that the appellant did not
carry his burden when he failed to address “the primary basis for
the trial court’s decision” until his reply brief (quotation
simplified)). Given HHS’s failure to challenge the primary basis
for the decision at issue, this, alone, provides a basis for rejecting
its request for relief. 3
2F

¶23 Second, even if we put aside the potential law of the case
implications of the prior rulings, HHS would still not be entitled
to relief because there was sufficient evidence to support the
Labor Commission’s decision.

¶24 In its brief, HHS claims that the “Labor Commission
committed legal error by finding that [HHS] must pay for any new,

3. The parties haven’t provided us with any briefing on the extent
to which the law of the case doctrine does (or perhaps doesn’t)
apply in a subsequent administrative proceeding stemming from
the same workplace accident. For purposes of this appeal,
however, and given the briefing failure identified above, we
simply assume that it does and that it thus provides a basis for
affirming the causation ruling in question.

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different, and ongoing medical care in perpetuity . . . without any
further recourse to dispute the treatment.” (Emphasis added.)
While HHS suggests that its challenge is a legal one, its arguments
focus on whether the Labor Commission had a sufficient basis for
deciding that the workplace incident actually caused Vargas’s
ongoing knee pain. But it’s well settled that causation questions
of this sort are factual in nature, not legal in nature. See, e.g.,
YESCO v. Labor Comm’n, 2021 UT App 96, ¶ 13, 497 P.3d 839
(“[W]hether the Commission properly found that medical
causation exists is a question of fact . . . .”); Morris v. Labor Comm’n,
2021 UT App 131, ¶ 12, 503 P.3d 519 (same); Benge v. Cody Ekker
Constr., 2019 UT App 164, ¶ 9, 451 P.3d 667 (“Medical causation is
a question of fact . . . .” (quotation simplified)); Fogleman v. Labor
Comm’n, 2015 UT App 294, ¶ 38, 364 P.3d 756 (“Whether medical
causation has been established is an issue of fact . . . .”).

¶25 Because of this, we review the causation determination at
issue for “substantial evidence.” Provo City v. Labor Comm’n, 2015
UT 32, ¶ 8, 345 P.3d 1242. When employing this standard, we
“examin[e] the whole record to determine whether a reasonable
mind might accept as adequate the evidence supporting the
decision.” Quast v. Labor Comm’n, 2017 UT 40, ¶ 15, 424 P.3d 15
(quotation simplified). Moreover, we “do not reweigh the
evidence and independently choose which inferences we find to
be the most reasonable.” Benge, 2019 UT App 164, ¶ 9 (quotation
simplified). Instead, we defer to the Labor Commission’s findings
“because when reasonably conflicting views arise, it is the Labor
Commission’s “province to draw inferences and resolve these
conflicts.” Id. (quotation simplified).

¶26 HHS’s initial problem is that it has not marshaled the
supporting evidence. “To aid the appellate court in conducting a
whole record review, the party challenging the factual findings
must marshal all of the evidence and demonstrate that, despite
the facts supporting the decision, the findings are not supported
by substantial evidence.” Quast, 2017 UT 40, ¶ 19 (quotation

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simplified). “While an appellate court is not required to assume
that the record supports the findings of the fact-finder in the
absence of marshaling, it may do so at its discretion.” Id. In the
absence of proper marshaling, an appellate court will commonly
conclude that the appellant has failed to carry its burden of
persuasion. See, e.g., Horning v. Labor Comm’n, 2023 UT App 30,
¶ 31, 529 P.3d 352. In its briefs, HHS made only a fleeting
reference to some of the findings from the Labor Commission (as
well as those of the ALJ). But HHS ignored and did not marshal
large portions of the record that supported the causation
determination in question. We can reject its challenge for this
reason alone.

¶27 In any event, even putting this marshaling failure aside, we
would still uphold the Labor Commission’s decision because
there was substantial evidence to support the conclusion that the
workplace incident caused Vargas’s ongoing knee pain. In the
ruling at issue, the Labor Commission accepted and relied on the
records from the separately captioned prior administrative case
(case 18-0680) that Vargas had filed based on this same workplace
incident. HHS has not argued that those records were not
admissible in this case too. Those records included the following:

• emergency room progress notes from the day of Vargas’s
injury where she was “found to have a left knee contusion,
acute decreased range of motion, swelling, and
tenderness,” and a follow-up note from a doctor that
identified these injuries as “work-related”;

• a November 2017 independent medical evaluation by Dr.
Anderson, where he diagnosed Vargas with “traumatic
[prepatellar] bursitis of the left knee” with “no relevant
pre-existing conditions” and noted that the “bursal
findings on [his] examination” were “the result of the
accident”;

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• a May 2018 MRI that showed “grade 2 patellofemoral
chondromalacia, trace joint effusion,” “[s]uperficial and
deep infrapatellar bursitis,” “[m]ild distal patellar
tendinosis,” and “[s]emimembranosus and pes arsine
bursitis”;

• records showing that after the May 2018 MRI, Vargas had
a steroid injection and was prescribed oral steroids for her
knee pain, but then indicating that “[n]either treatment
appears to have been effective”;

• a report from the physician assistant who provided the
steroid injection noting that Vargas had “failed all
conservative treatment options” and recommending “a
left knee shaving chondroplasty, synovectomy and
possible partial medial/lateral meniscectomy”;

• a January 2019 progress note that described Vargas’s knee
condition as “steadily worsening”;

• a September 2019 medical panel opinion concluding that
Vargas’s industrial accident had “resulted in a significant
contusion and patellar bursa injury,” noting that Vargas
had “not responded to conservative measures over the
course of time since the industrial accident,” and
highlighting a recommendation for possible surgical
intervention;

• a subsequent medical panel opinion that if “bursitis
persists despite treatment,” a steroid injection “may be
performed for short-term relief” and that “[i]n some cases,
recalcitrant chronic knee bursitis may be treated with
surgery to remove the bursa”;

• a progress note from Dr. Maak’s initial visit with Vargas,
where he noted that while he believed “a non-operative
approach” to treatment of Vargas’s left knee was “the best

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option,” he also recognized “the potential need for
arthroplasty in the future”; and

• a December 2020 progress note from Dr. Maak reporting
that Vargas’s “last cortisone shot was ineffective.”

Summing these records up, the Labor Commission therefore had
a basis for finding, among others, that Vargas had “no relevant
pre-existing conditions” before the workplace incident, that the
incident caused “traumatic bursitis,” tendinosis, and other
internal damage to her knee, and that subsequent steroid
injections and other conservative treatment measures had not yet
resolved her ongoing pain.

¶28 Despite all this, HHS focuses on the fact that Drs. Theiler
and Maak have recently concluded that Vargas’s ongoing pain
was not caused by the accident. But as noted, Dr. Theiler’s opinion
was that Vargas’s injury had resolved itself by July 2017. This
opinion is at odds with the conclusion of the many care providers
detailed above (and the medical panel too) who concluded that
Vargas’s condition had not been resolved by that time. And while
Dr. Maak believed that Vargas’s accident-related pain has been
resolved, that opinion does not seem to be shared by other
providers.

¶29 Again, when “conducting a substantial evidence review,
we do not reweigh the evidence and independently choose which
inferences we find to be the most reasonable.” Benge, 2019 UT App
164, ¶ 9 (quotation simplified). “Instead, we defer to the [Labor
Commission’s] findings because when reasonably conflicting
views arise, it is the [Labor Commission’s] province to draw
inferences and resolve these conflicts.” Id. (quotation simplified).
Even accounting for the contrary views of Drs. Theiler and Maak,
there is substantial evidence to support the conclusions that there
is a causal link between Vargas’s industrial accident and her knee
injury and that Vargas still suffers from ongoing pain that was

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caused by this accident and hasn’t yet been resolved by any prior
treatment. We accordingly reject HHS’s challenge to the Labor
Commission’s determination that the workplace accident caused
Vargas’s ongoing knee pain.

II. Remedy

¶30 In what we understand to be a reference to Dr. Maak’s plan
for a Synvisc injection, the ALJ ordered HHS to “pay for
[Vargas’s] continued care with Dr. Maak or other orthopedic
surgeon,” and the ALJ further ordered that if “conservative care
fails to improve [Vargas’s] left lower extremity functionality and
her chronic pain, [HHS] shall pay for surgery as recommended by
[Vargas’s] orthopedic surgeon.” The Labor Commission
subsequently “concur[red]” with the ALJ’s “order in the present
matter outlining the award of benefits to [Vargas] for her work-
related left-knee injury.”

¶31 HHS now points out that in her hearing application,
Vargas only requested a Synvisc injection. Because of this, HHS
argues that, even if causation was established, the order should
not have gone any further. 4 We have no need to rule on this issue.
3F

An “issue is not ripe if there exists no more than a difference of
opinion regarding the hypothetical application of a provision to a
situation in which the parties might, at some future time, find
themselves.” Archuleta v. State, 2020 UT 62, ¶ 37, 472 P.3d 950
(emphasis in original, quotation otherwise simplified). Here, the
order in question did not require HHS to pay for surgery. Rather,
it ordered HHS to pay for surgery if surgery is recommended by

4. Though somewhat unclear, HHS does not appear to be arguing
that, if causation was properly established, HHS should not be
obligated to pay for the Synvisc injection. Regardless, because we
concluded above that causation was properly established, we
would decline to disturb the Labor Commission’s conclusion that
HHS must pay for this injection to treat Vargas’s injury.

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Vargas’s orthopedic surgeon. No party has informed us that
Vargas has requested payment for surgery, let alone that a
surgeon has recommended surgery. We therefore have nothing
on this front to review.

¶32 In any event, given HHS’s history of opposing Vargas’s
requests for treatment, we think it appropriate to note that, to the
extent that HHS’s claim turns on Vargas’s failure to request
payment for surgery in case 20-0785, this argument is misplaced.
As the Labor Commission correctly pointed out, the final order
from case 18-0680 already established HHS’s liability “for all
future medical expenses necessary to treat [Vargas’s] May 4, 2017,
industrial injuries, including evaluation by an orthopedic
surgeon.” And that same final order also required HHS to pay for
“future medical care recommended by the panel, which was
medical care by an orthopedic surgeon to oversee a
comprehensive treatment plan for additional conservative
measures and possible surgical intervention.” Of note, HHS never
challenged that decision. Thus, Vargas doesn’t need a new
administrative decision to entitle her to compensation for “future
medical expenses necessary to treat” her injuries—she already has
an unchallenged order that entitles her to this. If Vargas at some
future point requests compensation for surgery, she will be
entitled to compensation for that surgery under the terms of that
order if she is able to show that surgery is “necessary to treat” her
ongoing knee pain.

CONCLUSION

¶33 The Labor Commission had substantial evidence to
support its conclusion that the workplace accident caused
Vargas’s injury and ongoing knee pain. From this, there was a
proper basis to order HHS to pay for a Synvisc injection. We
accordingly decline to disturb the Labor Commission’s decision.

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