Rouse v. Labor Commission

2024 UT App 77

THE UTAH COURT OF APPEALS

DARLENE ROUSE,
Petitioner,
v.
LABOR COMMISSION, WALMART,
AND NEW HAMPSHIRE INSURANCE COMPANY,
Respondents.

Opinion
No. 20220797-CA
Filed May 23, 2024

Original Proceeding in this Court

Loren M. Lambert, Attorney for Petitioner
David H. Tolk, Attorney for Respondents Walmart
and New Hampshire Insurance Company

JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1 Darlene Rouse worked for Walmart, and Walmart
accommodated her various physical limitations so that she could
perform her work. Rouse then sustained an industrial injury. She
brought a claim against Walmart and its insurer, New Hampshire
Insurance Company, (collectively, Walmart) for—among other
things—permanent total disability (PTD) compensation. The
administrative law judge (ALJ) over her case submitted the
relevant medical questions to a medical panel. The medical panel
issued a report concluding that despite the fact that Rouse “may
have some residual swelling” in her leg, she was capable of
performing her previous job duties and did not suffer “any sort of
permanent disability” attributable to the industrial accident. The
ALJ denied Rouse’s claim for PTD compensation, reasoning that
Rouse v. Labor Commission

Rouse failed to satisfy one of the statutory elements of a PTD
claim. Rouse appealed that decision to the Appeals Board of the
Labor Commission (the Appeals Board), which affirmed the ALJ’s
order. The Appeals Board determined that Rouse failed to prove
PTD based on the element of PTD the ALJ found dispositive and
based on another element the ALJ had not addressed. Rouse now
seeks judicial review.

¶2 We determine that Rouse’s due process rights were not
violated when the Appeals Board reached an element of PTD the
ALJ had not addressed and that the Appeals Board did not err in
its PTD determination. We also conclude that the ALJ’s
evidentiary decisions that Rouse contests did not constitute
abuses of the ALJ’s discretion. Therefore, we decline to disturb the
Appeals Board’s decision.

BACKGROUND

Rouse’s Industrial Injury

¶3 Rouse worked part time for Walmart (two eight-hour shifts
per week) “retrieving inventory from a warehouse.” Before the
industrial accident, Rouse received accommodations in her work.
She had physical limitations related to “a history of leg problems,”
including a vein condition for which she wore compression
stockings. Walmart allowed her to use a motorized cart, which
reduced the amount of walking she had to do, though she
estimated that she still walked five to six miles per shift and
climbed stairs three or four times per hour. Walmart also
provided her with a tool “to help her reach items stored on
shelves.”

¶4 On July 22, 2018, Rouse was walking down a warehouse
aisle and pivoting on her left foot to turn when she slipped and
fell on the concrete floor. After the fall, Rouse experienced a

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hematoma 1 in her left leg. In September of that year, an orthopedic
surgeon (Surgeon) performed a debridement 2 of the hematoma.
After the surgery, Rouse experienced swelling and mild
paresthesia 3 in her left leg.

¶5 Sometime after the industrial accident, Rouse returned to
her job at Walmart. Walmart gave her ninety days “to return to
her pre-injury ‘full duty’ status.” She resumed her use of a
motorized cart and reaching tool, and she was also permitted to
sit on a stool as needed and elevate her left leg during periods of
her shift. In March 2019, however, Walmart informed Rouse that
it could no longer accommodate her, and it terminated her
employment.

1. A hematoma is “a mass of usually clotted blood that forms in a
tissue, organ, or body space as a result of a broken blood vessel.”
Hematoma, Merriam-Webster, https://www.merriam-webster.co
m/dictionary/hematoma [https://perma.cc/C785-68U9].
Rouse also suffered a sprain to her right shoulder and strain to
her neck, but because she does not dispute that these issues were
fully resolved or base her PTD claim on these injuries, we do not
discuss them further.

2. Debridement is “the usually surgical removal of lacerated,
devitalized, or contaminated tissue.” Debridement, Merriam-
Webster, https://www.merriam-webster.com/dictionary/debride
ment [https://perma.cc/VP89-SR7S].

3. Paresthesia is “a sensation of pricking, tingling, or creeping on
the skin that has no objective cause.” Paresthesia, Merriam-
Webster, https://www.merriam-webster.com/dictionary/paresthe
sia [https://perma.cc/YZP3-CKZX].

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Rouse’s Application for PTD Compensation

¶6 In February 2020, Rouse filed an application with the Labor
Commission for, among other things, PTD compensation. In
March 2021, the assigned ALJ noted that the case involved
“conflicting expert opinions as to whether [Rouse’s] . . . industrial
injury [had] resulted in permanent work restrictions.” The ALJ
then appointed a medical panel.

Walmart’s Motion to Exclude Live Testimony from Rouse’s Expert

¶7 Rouse filed a notice indicating that she planned to present
live testimony from a physical therapist (Physical Therapist) at
her upcoming hearing before the ALJ. Walmart then filed a
motion in limine seeking an order “precluding [Rouse] from
presenting live expert testimony from [Physical Therapist] during
the administrative hearing.” Walmart argued that because “[t]he
Labor Commission requires the parties to prepare and submit a
joint medical records exhibit containing all pertinent medical
evidence” and because “[t]he conclusions and analysis of
[Physical Therapist were] contained in his . . . report, which
[would] be included in the joint medical records exhibit,” there
was “no demonstrated need for [the ALJ] to take live testimony
from this medical expert witness.”

¶8 The ALJ issued an order stating that “[i]t is the custom and
practice of the Labor Commission to require a petitioner to make
her case through the medical records of her medical providers,
not through their sworn testimony at [a] hearing” and that “[t]he
administrative forum simply cannot accommodate live testimony
from medical providers.” The ALJ also noted that Rouse had “the
opportunity to use discovery to obtain—and even to create—
records that evidence the nature of her physical therapy, the
results of her physical therapy, and the impressions and opinions
of [Physical Therapist].” Accordingly, the ALJ granted Walmart’s
motion in limine.

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The Medical Panel Report

¶9 The medical panel issued a report in July 2021. The
following is a summary of the medical treatment and opinions of
medical providers related to Rouse’s left-leg injury that the
medical panel recounted in its report:

• In October 2018 a doctor hired by Walmart (Doctor 1)
conducted a medical examination of Rouse and recorded a
diagnosis of “left lower extremity post-traumatic
hematoma secondary to the industrial accident . . . and left
calf persistent swelling secondary to sequela[4] of both the
surgery and the industrial injury.” Doctor 1 indicated that
Rouse “had not returned to her pre-injury status” and had
not reached medical stability. He recommended
restrictions, including not standing for longer than forty-
five minutes at a time, not lifting anything over ten pounds,
and avoiding kneeling and squatting for six weeks.

• An MRI performed in March 2019 identified fluid
collection beneath the skin in the soft tissue in front of
Rouse’s shinbone just below the knee. There was diffuse
fluid collection and swelling in the tissues below the skin
in Rouse’s lower left leg, but there was no evidence of bone
inflammation, significant muscle inflammation, or a rare
bacterial infection.

• In May 2019 a second doctor (Doctor 2) reviewed Rouse’s
medical records and opined that “the swelling and residual
hematoma” visible on Rouse’s MRI “did not require
further treatment.”

4. Sequela is “an aftereffect of a disease, condition, or injury.”
Sequela, Merriam-Webster, https://www.merriam-webster.com
/dictionary/sequela [https://perma.cc/5W25-3BUT].

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• In June 2019 another doctor hired by Walmart (Doctor 3)
conducted a medical examination and attributed Rouse’s
“mild left persisting calf erythema[5] and swelling and mild
decreased sensation” to the industrial accident. “He
opined that [Rouse’s] industrial injuries reached medical
stability as of 6/26/19 with a 1% whole person impairment
rating.”

• In February 2020 Surgeon “stated that [Rouse’s]
industrially-caused post-traumatic hematoma necessitated
the following permanent work restrictions: standing as
tolerated [for] up to four hours per day, walking as
tolerated with breaks, driving a cart as needed, and
changing positions frequently.” He also opined that
Rouse’s injury “reached medical stability on 6/7/19.” He
“concluded that [Rouse] would not be able to return to the
same work she had been doing prior” to the industrial
accident.

• In July 2020 Rouse underwent a functional capacity
evaluation with Physical Therapist. Physical Therapist
determined that Rouse “require[d] work
accommodations” and “would be unable to complete a full
eight-hour workday.” He also indicated that Rouse “would
likely need to be absent from work at least one to two days
each week in order to recover from symptom flare-ups,
even if she worked no more than three hours per day.”

• In September 2020 yet another doctor hired by Walmart
(Doctor 4) conducted a medical examination and
diagnosed Rouse with “left lower leg hematoma, resolved

5. Erythema is “abnormal redness of the skin or mucous
membranes due to capillary congestion (as in inflammation).”
Erythema, Merriam-Webster, https://www.merriam-webster.com
/dictionary/erythema [https://perma.cc/22YJ-QL9Z].

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with residual intermittent swelling; bilateral lower
extremity venous insufficiency/peripheral vascular
disease, preexisting and unrelated to the industrial injury;
[and] spinal stenosis with neurogenic claudication[6]
causing left lower extremity numbness and tingling,
unrelated to the industrial injury.” Doctor 4 acknowledged
that Rouse’s industrial injury “likely worsened the
swelling in [Rouse’s] left lower extremity; however, she
stated that the increased swelling would not translate to a
disability greater than what was present prior to the
accident.” She “concluded that [Rouse’s] industrial injury
reached medical stability [on] 7/26/19 with a 1% whole
person disability rating and did not thereafter necessitate
work restrictions on an industrial basis.”

¶10 The medical panel stated that Rouse “may have some
residual swelling related to the hematoma in the anterior right
leg[7] and would benefit from wearing a compression stocking
with activity,” but it acknowledged that “she was already
wearing these stockings prior to her injury” and found that “[s]he
clearly had pre-existing lower extremity swelling, likely related to

6. Spinal stenosis is the “narrowing of the lumbar spinal column
that produces pressure on the nerve roots.” Spinal Stenosis,
Merriam-Webster, https://www.merriam-webster.com/medical/s
pinal%20stenosis [https://perma.cc/2JYM-PSH7]. Neurogenic
claudication refers to “leg pain, heaviness and/or weakness with
walking” that “aris[es] in the nervous system.” Neurogenic
Claudication, Columbia University Irving Medical Center,
https://www.neurosurgery.columbia.edu/patient-care/conditions
/neurogenic-claudication [https://perma.cc/EVB7-2PGY].

7. As indicated above, the hematoma and subsequent symptoms
at issue involve Rouse’s left leg. Rouse does not contend that this
misstatement rendered this finding or the medical panel report
unsubstantiated.

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her age, body habitus, and venous insufficiency.” The panel
opined that Rouse “reached medical stability as of June 27, 2019,”
though it noted that she had “some residual numbness in the
anterior left leg and some erythema that had been unchanged for
months” at that point. The panel then stated that Rouse had “no
change in her present work restrictions[] as a result of this injury”
and that “[s]he is able to work full time and would have the same
standing and walking ‘restrictions’ she previously appears to
have been given.” It continued, “It is unclear if these were official
restrictions, but use of the electric cart would significantly reduce
how much time she would be required to stand and walk. There
are no restrictions on climbing or carrying. [Rouse] was medically
capable of working full time and is still medically capable of
working full time.”

¶11 In response to a question of whether Rouse is “presently
medically capable of performing the job duties of her former
position at Walmart without accommodation,” the panel stated,

Yes, [Rouse] is presently medically capable of
performing the job duties of her former position.
Whatever justification or explanation that was
provided pre-injury, which allowed her access to an
electric cart for the preceding 5 years, has not
changed. If she was given special dispensation for
her comfort, physical tolerance, and/or work
efficiency to use the cart, then this would appear to
be an accommodation and continued use is
reasonable. [Rouse] herself vouches for her
capability in resuming her previous job duties at
Walmart.

[Rouse’s] work injury did not result in any
sort of permanent disability. Soft tissue hematomas
like that incurred by [Rouse] are considered mild
injuries. The injury itself was due to a mild impact

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or contusion that broke the capillaries, and blood
collected in the subcutaneous tissue, i.e. the adipose
tissue beneath her skin. . . .

The soft tissue hematoma did not involve of
any functional structures of her musculoskeletal
system—it was not located within or between her
muscles, nor [did] it involve a joint, ligaments, or
tendons.

The panel then quoted from the operative report from Surgeon:

I made a vertical incision in the anteromedial leg
over the area of fullness, sharply dissecting through
skin and subcutaneous tissue. I encountered a
pseudocapsule around the hematoma, which was
incised and there was an obvious egress, what
appeared to be old blood/hematoma from within
the deep tissues. I evacuated all of the blood. There
was a notable amount of thickened/devitalized fat
that was also debrided including sharp excision of
the pseudocapsule. Once this was performed, the
wound was copiously irrigated.

¶12 With the medical panel report, the ALJ sent a notice to the
parties on July 30, 2021, indicating that objections to the report
would be due within twenty calendar days, a response would be
due ten calendar days from the filing date of any objection, and a
reply would be due five days from the filing date of the response.

Rouse’s Objection and Motion Related to the Medical Panel Report

¶13 Rouse filed an objection to the medical panel report on
August 16, 2021. In this objection, she argued that the report
“should be rejected” because, among other reasons, the panel’s
conclusion that Rouse’s “soft tissue hematoma did not involve of
any functional structures of her musculoskeletal system”

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contradicted Surgeon’s operative report and the panel’s
conclusions did not accurately reflect the medical record. The
objection also contained multiple derogatory references to the
medical panel report, such as calling its analysis “maggot ridden”
and referring to the panel’s “youth-clouded folly.”

¶14 On August 31, 2021, Rouse also filed a motion seeking that
a letter from Surgeon be admitted into evidence. In this letter,
Surgeon checked a box indicating that “[t]he surgery and
hematoma did affect the deeper muscles and connective tissue.”
Walmart responded that Rouse’s motion was not timely.

The ALJ’s Order

¶15 In November 2021, the ALJ issued an order addressing
Rouse’s objection, motion, and PTD claim. Regarding Rouse’s
objection to the medical panel report, the ALJ condemned Rouse’s
attorney’s use of unprofessional language in the objection. The
ALJ then said,

Further, the [c]ourt emphasizes that the Labor
Commission’s administrative rules contemplate
that a party must proffer conflicting medical
testimony in order to establish a need to clarify a
medical panel report. Utah Admin. Code R602-2-
2(4). Debate with the panel report, criticism of the
panel report, and abuse of the panel members need
not be considered.

The [c]ourt has ignored the inflammatory
language in [Rouse’s] objection to the [medical
panel] report in this matter and has read the
objection for what substance it offers. However, the
[c]ourt does not find merit in the objection, which is
little more than debate and criticism based on
rhetorical questions, hyperbolic adjective and

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metaphor, and insistence that the [medical panel]
physicians do not understand the terms they use in
their report. Nothing in the objection approaches
the standard of “conflicting medical evidence”
contemplated under R602-2-2(4).

¶16 Regarding Rouse’s motion, the ALJ found that it was
untimely because “the deadline for objection to the [medical
panel] report fell on August 19, 2021,” and Rouse “did not file her
motion to admit new evidence into the record until September 1,
2021.”

¶17 The ALJ denied Rouse PTD compensation, basing this
decision on a statutory element for establishing PTD that an
employee must prove that any impairments caused by the
industrial injury “prevent the employee from performing the
essential functions of the work activities for which the employee
has been qualified until the time of the industrial accident.” See
Utah Code § 34A-2-413(1)(c)(iii). The ALJ reasoned that Rouse’s
“job at Walmart required the following physical capabilities:
moving up and down a ladder; walking within the work area for
extended periods of time; and lifting, pushing, pulling, and
carrying tools, objects, or equipment above shoulder level without
assistance” and that “[p]rior to her July 22, 2018, industrial
accident, [Rouse] was not capable of performing these essential
job functions” without accommodation. The ALJ determined that
although Rouse was “fortunate that Walmart was willing to
accommodate her then existing degree of disability” by providing
her with an electric cart and a reaching tool, “prior to her
industrial injury, [Rouse] was already incapable of performing at
least three essential functions of her job at Walmart.” The ALJ
stated, “In these circumstances, it is irrelevant that [Rouse’s]
industrial accident resulted in an additional disability. What is
relevant is that [Rouse] was not rendered unable to perform the
essential functions of her work for Walmart by her industrial
injury.” Because Rouse “was unable to perform the essential

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functions of the job” “even prior to the industrial accident,” the
ALJ concluded that Rouse could not satisfy this element of PTD.

The Appeals Board’s Review

¶18 Rouse appealed the ALJ’s order to the Appeals Board. In
her motion for review, Rouse argued that “[t]he ALJ erred by,”
among other things, misapplying the statutory element related to
essential job functions, “barring Ms. Rouse from supplementing
the evidentiary record,” and “barring expert testimony.” She
requested that “[t]he ALJ’s final order . . . be stricken and PTD
benefits awarded” or, alternatively, that the case “be remanded to
a new ALJ for a new hearing that allows Ms. Rouse to present
[Physical Therapist’s] live expert testimony.”

¶19 The Appeals Board thereafter issued a decision affirming
in part the ALJ’s order and remanding a matter not at issue in our
review. As relevant here, the Appeals Board determined that the
ALJ’s “denial of late-filed medical evidence in response to the
medical panel’s report was appropriate.” As regarding the ALJ’s
denial of Rouse’s PTD claim, the Appeals Board acknowledged
that some medical providers had “characterized the effects of Ms.
Rouse’s work injuries as potentially permanent because she had
not returned to her baseline status at the time of the accident,” but
it ultimately “agree[d] with [the ALJ’s] decision to rely on the
panel’s conclusions as they are supported by the evidence.” The
Appeals Board agreed with the ALJ that Rouse had not proved
“that her work-related injuries prevent her from performing the
essential functions of the work activities for which she was
qualified at the time of the accident,” but it differed from the ALJ
in how it reached this conclusion. It compared the work Rouse
was actually able to do before the industrial accident to that which
she could do afterward, saying,

The record supports the conclusion that Ms.
Rouse would not be able to return to the former

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work she performed that required extended time
standing or walking; however, she was not
performing that type of work at the time of the
accident. Rather, she was working part time on
weekends with accommodation for her level of
physical ability. The panel noted that even Ms.
Rouse indicated she would be able to return to her
former position with Walmart. The Appeals Board
is not persuaded that the work accident and injuries,
from which Ms. Rouse recovered without
permanent disability, prevent her from performing
the work for which she was qualified at the time of
the accident.

¶20 The Appeals Board also relied on the medical panel report
to determine that Rouse had not satisfied another necessary
element of a PTD claim: that of proving that she “sustained a
significant impairment . . . as a result of the industrial accident.”
Utah Code § 34A-2-413(1)(b)(i). The Appeals Board
acknowledged that the ALJ “did not discuss this element,” but it
ultimately concluded that Rouse had failed to satisfy this element.
Its analysis related to this element was as follows:

Although the Utah Workers’ Compensation Act
does not define what constitutes a significant
impairment, . . . the Act provides that “‘impairment’
is a purely medical condition reflecting an
anatomical or functional abnormality or loss . . . .”
Notably, an impairment rating is not the sole
measure of impairment . . . .

Unlike other physicians in this case,
including [Physical Therapist,] after administering a
functional capacity evaluation, the panel analyzed
Ms. Rouse’s condition in the context of her physical
capacity and limitations that were present prior to

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the work accident. With this perspective . . . , the
panel concluded that the work accident and injuries
did not change Ms. Rouse’s condition with respect
to her work restrictions. The panel also opined that
Ms. Rouse did not incur any permanent disability as
a result of her work injuries. The Appeals Board
reads the panel’s conclusions on these points as
showing that Ms. Rouse did not sustain a significant
impairment as a result of the work accident. The
preponderance of the evidence supports such a
finding, as the medical record shows Ms. Rouse’s
hematoma was treated appropriately without
residual disability . . . .

(First omission in original.) Ultimately, the Appeals Board
determined that because Rouse had failed to satisfy these two
elements of a PTD claim, she had “therefore not established
entitlement to [PTD] compensation.”

¶21 After the ALJ adjudicated the issue that the Appeals Board
remanded, Rouse filed a renewed motion for review. Rouse
incorporated her prior motion and again contended that the ALJ
erred by misapplying the element about essential job functions,
“barring Ms. Rouse from supplementing the evidentiary record,”
and “barring expert testimony.”

¶22 The Appeals Board then issued a second order, this time
affirming the ALJ’s decision without remanding any issues. It
said,

As outlined in the Appeals Board’s previous
decision, the medical panel’s conclusions are well-
reasoned and supported by the medical record. The
Appeals Board finds the panel’s opinion on the
extent of Ms. Rouse’s work injury and her functional
limitations to be persuasive. . . .

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The Appeals Board also reiterates its finding
that Ms. Rouse has not established entitlement to an
award of [PTD] benefits because she does not meet
the statutory criteria for such an award. Specifically,
Ms. Rouse did not demonstrate that she sustained a
significant impairment as a result of the work
accident or that her work-related injuries prevent
her from performing the essential functions of the
work activities for which she was qualified at the
time of the accident. The medical panel’s conclusion
that Ms. Rouse did not sustain a permanent injury
and Ms. Rouse’s admission to the panel that she was
capable of working in the position she held prior to
the accident were of significance in the Appeals
Board’s consideration on these criteria.

¶23 Rouse now seeks judicial review.

ISSUES AND STANDARDS OF REVIEW

¶24 Rouse presents multiple issues for our review. First, she
asserts that the ALJ and the Appeals Board misapplied the
Workers’ Compensation Act’s PTD framework. We review a legal
question underlying an administrative decision for correctness,
see Provo City v. Utah Labor Comm’n, 2015 UT 32, ¶ 17, 345 P.3d
1242, but “whether the commission correctly or incorrectly denied
benefits is a traditional mixed question of law and fact,” Jex v. Utah
Labor Comm’n, 2013 UT 40, ¶ 15, 306 P.3d 799 (cleaned up). Our
review on such a question “may be either deferential or de novo,
depending on the nature of the particular mixed question.” Provo
City, 2015 UT 32, ¶ 17; see also Murray v. Utah Labor Comm’n, 2013
UT 38, ¶ 36, 308 P.3d 461 (listing three factors for determining
whether review of a mixed question is deferential). On the
particular question of significant impairment, “we will defer to
the [Labor] Commission’s significant impairment determination

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if there is substantial evidence to support it.” Utah Am. Energy Inc.
v. Labor Comm’n, 2021 UT App 33, ¶ 21, 484 P.3d 1195 (cleaned up),
cert. denied, 496 P.3d 718 (Utah 2021).

¶25 Second, Rouse contends that the ALJ erred in denying
Rouse the opportunity to present live expert testimony. “The
standard of review for an agency’s application and interpretation
of its own rules is abuse of discretion.” Wallace v. Labor Comm’n,
2019 UT App 121, ¶ 7, 449 P.3d 218.

¶26 Third, Rouse argues that the ALJ erred in two additional
decisions related to evidence: not allowing Rouse to supplement
the evidentiary record with Surgeon’s letter and admitting the
medical panel report over Rouse’s objection. “We review an
agency’s decisions to include or exclude evidence under an abuse
of discretion standard, providing relief only if a reasonable basis
for that decision is not apparent from the record.” Giron v. Labor
Comm’n, 2023 UT App 130, ¶ 19, 539 P.3d 822 (cleaned up), cert.
denied, 544 P.3d 456 (Utah 2024).

ANALYSIS

I. The Labor Commission’s PTD Determination

¶27 Rouse argues that both the ALJ and the Appeals Board
misapplied the statutory framework for determining eligibility
for PTD compensation. We first address a preliminary issue
regarding the scope of our review of the ALJ’s and the Appeals
Board’s orders.

A. The Scope of Judicial Review

¶28 When a petitioner for workers’ compensation benefits
seeks judicial review of the decision of the Appeals Board, it is
that decision—not the ALJ’s decision awarding or denying
benefits—that is the focus of our review. See Wood v. Labor

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Comm’n, 2012 UT App 26, ¶ 4, 270 P.3d 568 (“We review the
[Appeals] Board’s decision rather than the ALJ’s . . . .”), cert.
denied, 280 P.3d 421 (Utah 2012). In her principal brief, Rouse
focuses much of her argument on the “patently flawed analysis”
of the ALJ in determining that Rouse did not satisfy the element
of PTD related to essential job functions because she could not
perform the listed requirements of her job without
accommodation either before or after the industrial accident. But
this analysis is not what is before us. Instead, we review the
Appeals Board’s decision, which specifically differed from the
ALJ’s decision in this respect. Again, the Appeals Board
compared the work Rouse was performing before the industrial
accident to that which she was able do afterward and said that it
was “not persuaded that the work accident and injuries, from
which Ms. Rouse recovered without permanent disability,
prevent her from performing the work for which she was
qualified at the time of the accident.” Ultimately, the ALJ’s
analysis on this point is beyond the scope of our review.

¶29 Additionally, we note that while Rouse is seeking review
of the Appeals Board’s second decision—the one affirming the
ALJ’s order after remand—we also consider the analysis the
Appeals Board provided in its first order. The Appeals Board
explicitly referred in its second order to the analysis in its first
order. Accordingly, we may look to its first order when
considering its analysis on this issue.

B. The Appeals Board’s Denial of PTD Compensation

¶30 “[T]aken as a whole, the permanent total disability statute
requires workers to prove six elements.” Provo City v. Utah Labor
Comm’n, 2015 UT 32, ¶ 6, 345 P.3d 1242. These are as follows:

(1) the employee sustained a significant
impairment; (2) the employee is not gainfully
employed; (3) the employee has an impairment or

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combination of impairments that limit the
employee’s ability to do basic work activities; (4) the
impairment or impairments prevent the employee
from performing the essential functions of the work
activities for which the employee had been qualified
at the time of the accident; (5) the employee cannot
perform other work reasonably available; and
(6) the industrial accident or occupational disease is
the direct cause of the employee’s permanent total
disability.

Id. (cleaned up); see also Utah Code § 34A-2-413(1)(b)–(c).

¶31 The Appeals Board determined that Rouse failed to satisfy
both the first and the fourth of these elements. As failure on either
element is dispositive, our determination that the Appeals Board
was correct with respect to either element defeats Rouse’s claim.
We elect to address element one—whether Rouse sustained a
significant impairment—and we do not disturb the Appeals
Board’s decision that Rouse failed to satisfy this element.

1. Rouse’s Due Process Argument Regarding the First
Element

¶32 As a preliminary matter, we address Rouse’s contention
that the issue of whether she sustained a significant impairment
“was improperly determined sua sponte by the Appeals Board.”
Rouse argues that “the due process clause of the Utah
Constitution affords all parties the right to receive notice and an
opportunity to be heard on all claims that adversely affect their
property interests” and that Rouse was denied this right because
the ALJ did not make a finding on this element and the Appeals
Board “depriv[ed] Ms. Rouse of the opportunity to brief this issue
during the administrative process.”

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¶33 Rouse is mistaken. Utah Code section 34A-1-303 indicates
that “[o]n appeal, . . . the Appeals Board may: (i) affirm the
decision of an [ALJ]; (ii) modify the decision of an [ALJ];
(iii) return the case to an [ALJ] for further action as directed; or
(iv) reverse the findings, conclusions, and decision of an [ALJ].”
Utah Code § 34A-1-303(4)(a). The fact that Rouse indicated in her
motions for review that she was claiming the ALJ erred with
respect to the element related to essential job functions did not
limit the Appeals Board to reviewing only that element. Rouse
sought review of the ALJ’s denial of her petition for PTD
compensation, so the Appeals Board was authorized to affirm,
modify, or reverse that denial; to reverse specific findings or
conclusions made by the ALJ; or to return the case to the ALJ. See
id. Thus, the Appeals Board was authorized to consider all of the
elements of a PTD claim in its review of the ALJ’s decision.
Indeed, Rouse’s request that “[t]he ALJ’s final order . . . be stricken
and PTD benefits awarded” would require the Appeals Board to
determine that Rouse had proved that she qualified for PTD
benefits, which necessitates satisfying all six of the elements listed
above, see Provo City, 2015 UT 32, ¶ 6.

¶34 This point also belies Rouse’s assertion that she was
“depriv[ed] . . . of the opportunity to brief this issue during the
administrative process.” Rouse had the burden of establishing
this element—and all of the other elements—to succeed on her
claim before the Labor Commission. The ALJ and the Appeals
Board both acted as fact finders related to the issues before the
Labor Commission. See Utah Code § 34A-1-303(4)(a)–(d); Carter v.
Labor Comm’n Appeals Board, 2006 UT App 477, ¶ 16, 153 P.3d 763
(“[A]lthough the ALJ initially hears the testimony and observes
the witnesses, the [Appeals] Board is the ultimate fact
finder . . . .”). The Appeals Board was authorized to “base its
decision on . . . the evidence previously submitted in the case” if
it so desired, Utah Code § 34A-1-303(4)(c), and receiving
additional briefing, argument, or evidence beyond what was

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presented to the ALJ was a decision at the discretion of the
Appeals Board, see id. § 34A-1-303(4)(d) (stating that the Appeals
Board “may permit the parties to . . . file briefs or other papers . . .
or [to] conduct oral argument” (emphasis added)); id. § 34A-1-
303(4)(c) (explaining that the Appeals Board “may base its
decision on . . . written argument or written supplemental
evidence requested by” the Appeals Board (emphasis added)).
Accordingly, Rouse’s opportunity to address the elements of a
PTD claim by presenting evidence and argument to the ALJ
satisfied her due process rights even in relation to the Appeals
Board because this evidence and argument was also before the
Appeals Board. See State v. Hegbloom, 2014 UT App 213, ¶ 13, 362
P.3d 921 (“Due process requires timely and adequate notice and
an opportunity to be heard in a meaningful way[,] . . . [which]
includes the opportunity to present evidence and argument on
that issue before decision.” (cleaned up)), cert. denied, 343 P.3d 708
(Utah 2015). In other words, Rouse’s due process rights did not
require an opportunity to brief this element to the Appeals Board
specifically (though, if permitted to submit additional briefing,
she could well have chosen to address all of the elements), and
Rouse was not denied due process when the Appeals Board
considered this element.

2. Whether the Appeals Board Erred in Determining that
Rouse Did Not Sustain a Significant Impairment

¶35 We next consider the merits of the Appeals Board’s
conclusion on the significant impairment element. An impairment
is defined as “a purely medical condition reflecting an anatomical
or functional abnormality or loss.” Utah Code § 34A-2-102(1)(i).
“The question of whether a particular impairment is ‘significant’
. . . requires a court to evaluate the severity of the impairment and
determine whether the level of impairment exceeds a minimum
threshold.” Provo City v. Utah Labor Comm’n, 2015 UT 32, ¶ 16, 345
P.3d 1242. “Physical impairment ratings, which assess the
percentage of functional loss sustained by the industrial accident,

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may inform this determination.” Utah Am. Energy Inc. v. Labor
Comm’n, 2021 UT App 33, ¶ 21, 484 P.3d 1195, cert. denied, 496 P.3d
718 (Utah 2021). “However, Utah courts have declined to define
‘significant impairment’ in terms of an exact impairment-rating
percentage, instead choosing to evaluate the severity of the
impairment in terms of the specific individual who has suffered a
work-related injury.” Id. (cleaned up).

¶36 “We will defer to the [Appeals Board’s] ‘significant
impairment’ determination if there is substantial evidence to
support it.” Id. (cleaned up). “In conducting a substantial evidence
review, we do not reweigh the evidence and independently
choose which inferences we find to be the most reasonable.”
Hoffman v. Labor Comm’n, 2023 UT App 96, ¶ 25, 536 P.3d 143
(cleaned up). Moreover, “a medical panel’s report alone can be
enough to conclude that the [Appeals Board’s] determination was
supported by substantial evidence.” Id. ¶ 24 (cleaned up); see also
Morris v. Labor Comm’n, 2021 UT App 131, ¶ 17, 503 P.3d 519;
Valdez v. Labor Comm’n, 2017 UT App 64, ¶ 22, 397 P.3d 753, cert.
denied, 400 P.3d 1046 (Utah 2017); Hutchings v. Labor Comm’n, 2016
UT App 160, ¶ 32, 378 P.3d 1273, cert. denied, 390 P.3d 720 (Utah
2017); Cook v. Labor Comm’n, 2013 UT App 286, ¶ 18, 317 P.3d 464.

¶37 The Appeals Board’s conclusion here that Rouse had not
proved a significant impairment was supported by the medical
panel report. The Appeals Board explained that it based its
decision on this issue on the report, saying,

[T]he panel analyzed Ms. Rouse’s condition in the
context of her physical capacity and limitations that
were present prior to the work accident. With this
perspective . . . , the panel concluded that the work
accident and injuries did not change Ms. Rouse’s
condition with respect to her work restrictions. The
panel also opined that Ms. Rouse did not incur any
permanent disability as a result of her work injuries.

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The Appeals Board reads the panel’s conclusions on
these points as showing that Ms. Rouse did not
sustain a significant impairment as a result of the
work accident. The preponderance of the evidence
supports such a finding, as the medical record
shows Ms. Rouse’s hematoma was treated
appropriately without residual disability . . . .

¶38 While it is true that the medical panel stated that Rouse
“may have some residual swelling related to the hematoma,” it
also stated that the hematoma had “reached medical stability,”
that Rouse had no change in work restrictions attributable to the
industrial accident, that she was capable of performing her
previous job duties, 8 and that she did not suffer “any sort of
permanent disability” attributable to the industrial accident. The
medical panel also stated that “[s]oft tissue hematomas like that
incurred by [Rouse] are considered mild injuries” and “[t]he
injury itself was due to a mild impact or contusion.” These
findings support the Appeals Board’s decision that Rouse did not
suffer a significant impairment. Because “the [Appeals Board’s]
decision is supported by the medical panel report[], the

8. Rouse asserts that “the panel qualified its opinion by stating
that to work Ms. Rouse would have to be ‘given special
dispensation for her comfort, physical tolerance, and/or work
efficiency to use the cart’” and that “[t]he panel went beyond its
expertise opining that Ms. Rouse could be vocationally
accommodated.” Rouse misreads the panel’s report. The panel
was not opining that Rouse needed these accommodations or that
a particular employer should provide them but was instead
finding that Rouse could perform the same job duties she did
before the industrial accident—meaning the job duties that she
actually performed, as accommodated. The panel did not go
“beyond its expertise” in reaching this conclusion. We also note
that the approach the panel took is precisely the approach Rouse
argues is correct regarding defining essential job functions.

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substantial evidence standard is satisfied.” Hoffman, 2023 UT App
96, ¶ 25 (cleaned up).

II. Live Expert Testimony

¶39 Next, Rouse contends that the ALJ erred by not allowing
Physical Therapist to present live testimony. 9 She argues, “In
barring Ms. Rouse from calling her expert witness, the ALJ
applied the [Labor Commission’s] custom, not the law, and did
not adequately explain her decision. Therefore her decision was
legally improper and an arbitrary abuse of discretion.”

¶40 Our court recently considered in another workers’
compensation case whether an “ALJ erred in refusing to allow [a
petitioner’s] expert to testify in person.” Giron v. Labor Comm’n,
2023 UT App 130, ¶ 30, 539 P.3d 822, cert. denied, 544 P.3d 456
(Utah 2024). We noted that “[t]he rules of evidence and procedure
before a commission differ from ‘the usual common law or
statutory rules of evidence’ and the commission is ‘not bound’ by
them.” Id. ¶ 32 (quoting Utah Code § 34A-2-802(1)). Indeed, “[t]he
commission may receive as evidence and use as proof of any fact
in dispute all evidence considered material and relevant,” Utah
Code § 34A-2-802(2), and “may exclude evidence that is

9. As we explained above, we generally review the Appeals
Board’s decision. See supra ¶ 28. However, an ALJ’s evidentiary
rulings will almost always impact the body of evidence upon
which the Appeals Board bases its decision. See Utah Code § 34A-
1-303(4)(b)–(c) (stating that the “Appeals Board may base its
decision on . . . the evidence previously submitted in the case” and
“may not conduct a trial de novo,” although it may request
“written supplemental evidence”). Accordingly, when a
petitioner contends that an evidentiary decision by the ALJ
“undermined the [Appeals] Board’s review process,” we may
“elect to address [the petitioner’s] argument.” Carnagie v.
Workforce Appeals Board, 2013 UT App 193, ¶ 13 n.4, 308 P.3d 561.

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irrelevant, immaterial, or unduly repetitious,” id. § 63G-4-
206(1)(b)(i). We then pointed to the ALJ’s explanation that
“allowing [the petitioner’s expert] to testify could distract the
court from his opinion in the medical records exhibit . . . and
would be procedurally unfair for opposing parties’ expert
witness” and its statement that the petitioner “had not provided
sufficient justification as to why the court would need to hear [the
expert’s] testimony, rather than rely on his opinion in the [medical
records exhibit],” and we concluded from these that “the ALJ
provided a ‘reasonable basis’ for the decision to exclude live
testimony—it would be duplicative, unfair, and distracting.”
Giron, 2023 UT App 130, ¶ 33 (cleaned up).

¶41 We reach the same conclusion here. When the ALJ ruled on
this issue, she explained that “[i]t is the custom and practice of the
Labor Commission to require a petitioner to make her case
through the medical records of her medical providers, not
through their sworn testimony at [a] hearing,” that “[t]he
administrative forum simply cannot accommodate live testimony
from medical providers,” and that Rouse had “the opportunity to
use discovery to obtain—and even to create—records that
evidence . . . the impressions and opinions of [Physical
Therapist].” Accordingly, “the ALJ provided a ‘reasonable basis’
for the decision to exclude live testimony,” id., which is that
hearing live testimony from Physical Therapist was unnecessary,
duplicative, impractical, and contrary to the Labor Commission’s
custom and practice. 10 Rouse contends that “the ALJ made no

10. Rouse asserts, “While this may be the [Labor Commission’s]
‘custom,’ it is inconsistent with the law.” She points to an
administrative rule providing that “[n]o later than 45 days prior
to the scheduled hearing, parties shall file a signed pretrial
disclosure form that identifies . . . expert witnesses the parties
actually intend to call at the hearing,” Utah Admin. Code R602-2-
(continued…)

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appropriate finding that live testimony would be improper as
‘irrelevant, immaterial or unduly repetitious evidence’” and that
“her order is conclusory and devoid of any significant analysis,”
but the ALJ was not required to use these exact words, and she
did provide a reasonable basis for her decision (including, in
effect, that the evidence would be unduly repetitious). The ALJ
did not abuse her discretion.

III. Rouse’s Motion to Supplement the Evidentiary Record and
Objection to the Medical Panel Report

¶42 Finally, Rouse argues that the ALJ erred in denying her
motion to supplement the record with a letter from Surgeon and
in overruling her objection to the medical panel report.

A. Rouse’s Motion to Supplement the Record

¶43 We affirm the ALJ’s denial of Rouse’s motion to
supplement the record with the letter from Surgeon. “While the
rules clearly allow the submission of late-filed medical records,
such submission is at the discretion of the ALJ and by stipulation
or for good cause shown.” Wallace v. Labor Comm’n, 2019 UT App
121, ¶ 10, 449 P.3d 218 (cleaned up); see also Utah Admin. Code
R602-2-1(H)(5) (“Late-filed medical records may or may not be
admitted at the discretion of the [ALJ] by stipulation or for good

1(I)(3), and she argues that this language “anticipates parties can
call their experts to testify at the hearing.” But this language does
not impose any requirement on the Labor Commission to hear
live testimony from medical experts. Rouse also points to other
language of the rule that “anticipates that expert medical
deposition testimony can be submitted to the [medical] panel,” see
id. R602-2-1(E)(2)(c), but deposition testimony is distinct from live
testimony at a hearing. Rouse’s claim that the Labor
Commission’s custom “is inconsistent with the law” is thus
unavailing.

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cause shown.”). Although an objection to a medical panel report
may include “a proffer of conflicting medical testimony,” Utah
Admin. Code R602-2-2(B)(4), such objections are due within
twenty days of the service of the report, see id. R602-2-2(B)(1).
Here, Rouse did not even reach out to Surgeon to request the letter
at issue until the last day of the twenty-day period for objecting to
the medical panel report, and she has submitted no explanation
for that delay other than to say that the deadline for objecting to
the panel[] report was a “short deadline.” This explanation is
alone insufficient to support a finding of good cause for the late
filing of Surgeon’s letter. Moreover, even had Rouse established
good cause, admission of the letter would still have been within
the ALJ’s discretion. See id. R602-2-1(H)(5); Wallace, 2019 UT App
121, ¶ 10. For these reasons, we do not disturb the ALJ’s denial of
Rouse’s motion to supplement the record.

B. Rouse’s Objection to the Medical Panel Report

¶44 Rouse also contends that the ALJ erred by admitting the
medical panel report over her objection. Rouse asserts that “[t]he
ALJ’s conclusory dismissal of Ms. Rouse’s objection to the
[medical panel report] . . . because she did not present ‘conflicting
medical evidence[]’ . . . is contrary to the law [and] the [Labor
Commission’s] custom” because “there is no rule that requires the
submission of ‘conflicting medical evidence[]’ to object to the
[medical panel report].”

¶45 We note as an initial matter that the ALJ did not state that
presentation of conflicting medical evidence was necessary to raise
an objection to a medical panel report but instead that “a party
must proffer conflicting medical testimony in order to establish a
need to clarify a medical panel report.” (Emphasis added.) Rouse
challenges only the ALJ’s decision to admit the medical report
into evidence, not the lack of additional proceedings to clarify the
report, see generally Utah Admin. Code R602-2-2(4) (“A hearing on
objections to the panel report may be scheduled if there is a

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proffer of conflicting medical testimony showing a need to clarify
the medical panel report. Where there is a proffer of new written
conflicting medical evidence, the [ALJ] may, in lieu of a hearing,
re-submit the new evidence to the panel for consideration and
clarification.”). Thus, we need not decide whether a proffer of
conflicting medical testimony is necessary to establish a need to
clarify a medical panel report.

¶46 As to an “ALJ’s decision whether to admit a medical panel
report into evidence,” that decision “is entirely discretionary, and
we will provide relief only when a reasonable basis for that
decision is not apparent from the record.” Right Way Trucking, LLC
v. Labor Comm’n, 2015 UT App 210, ¶ 10, 357 P.3d 1024 (cleaned
up). The ALJ’s reference to a lack of conflicting medical evidence
was not all the ALJ said about the medical panel report and
Rouse’s objection to it. First, the ALJ determined (1) that the
medical panel members “provided information sufficient to
demonstrate that they specialize in the treatment of . . . traumatic
hematoma” and (2) “that the requirements of Utah Code [section]
34A-2-601(1)(c) [were] satisfied.” This provided a rational basis
for the ALJ to determine that any objections to the panel based on
its qualifications were unavailing. Second, the ALJ stated that she
had “ignored the inflammatory language in [Rouse’s] objection
. . . and ha[d] read the objection for what substance it offers.” Still,
the ALJ stated that she did “not find merit in the objection.” This
was because—even aside from the inflammatory language—she
found the objection to be “little more than debate and criticism
based on rhetorical questions, hyperbolic adjective and metaphor,
and insistence that the [medical panel] physicians do not
understand the terms they use in their report.” None of these
things provide adequate grounds for sustaining an objection to a
medical panel report.

¶47 Moreover, the Appeals Board, the “ultimate fact finder,”
Carter v. Labor Comm’n Appeals Board, 2006 UT App 477, ¶ 16, 153
P.3d 763, made findings that defeat Rouse’s argument. “We

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review the [Labor] Commission’s refusal to exclude a medical
panel report on the basis of an objection under an abuse of
discretion standard, providing relief only if a reasonable basis for
that decision is not apparent from the record.” Wright v. Labor
Comm’n, 2021 UT App 43, ¶ 18, 489 P.3d 211 (cleaned up). The
Appeals Board said it was “not convinced by Ms. Rouse’s
arguments that [the ALJ] . . . erred in admitting the medical
panel’s report into the record over Ms. Rouse’s objection” or that
the ALJ “failed to fully or properly consider the substance of Ms.
Rouse’s objection to the medical panel’s report.” Instead, it said,
“[The ALJ’s] decision clearly outlines her reasoning for rejecting
Ms. Rouse’s arguments against admitting the panel[] report into
evidence.” Additionally, the Appeals Board stated,

Ms. Rouse contends that the medical panel’s
conclusions in this matter are flawed and not
consistent with the medical evidence submitted.
The Appeals Board has reviewed the medical
panel’s report and does not agree with Ms. Rouse’s
characterization of its contents. The panel has
authored a well-reasoned and carefully explained
opinion with regard to the extent of Ms. Rouse’s
work injuries as well as her condition after
recovering from such injuries. The panel members
demonstrated their qualifications for considering
the injuries in Ms. Rouse’s case and provided a clear
analysis on their treatment and residual effects in
light of the medical evidence in the record.

The Appeals Board is not convinced that the
panel erred in its assessment of Ms. Rouse’s
condition. The medical record shows that certain
opinions, including that of [Doctor 1], characterized
the effects of Ms. Rouse’s work injuries as
potentially permanent because she had not returned
to her baseline status at the time of the accident.

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However, the record also shows that subsequent
medical opinions, such as [Doctor 2’s] report,
characterized Ms. Rouse’s work injuries as having
progressed toward resolution and a point where she
required only over-the-counter medicines. After
considering the entire medical record, the medical
panel determined that Ms. Rouse’s work injuries
were medically stable and that her condition was
essentially back to where it was before the accident.

The Appeals Board’s findings that the ALJ did not err in admitting
the medical panel report over Rouse’s objections and that the
medical panel did not err in its conclusions are supported by clear
and rational reasoning and references to the medical record. We
do not find an abuse of discretion related to the admission of the
medical panel report over Rouse’s objection.

CONCLUSION

¶48 The Appeals Board did not err in denying Rouse PTD
compensation, and none of the evidentiary decisions Rouse
disputes constituted an abuse of discretion. Therefore, we decline
to disturb the Appeals Board’s decision.

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