Wallace v. Labor Commission

2019 UT App 121

THE UTAH COURT OF APPEALS

GENA L. WALLACE,
Petitioner,
v.
LABOR COMMISSION, AMANGIRI RESORT, AND
WORKERS’ COMPENSATION FUND,
Respondents.

Opinion
No. 20180677-CA
Filed July 11, 2019

Original Proceeding in this Court

Virginius Dabney and Stony Olsen, Attorneys
for Petitioner
Floyd W. Holm, Attorney for Respondents Amangiri
Resort, and Workers’ Compensation Fund

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 Gena L. Wallace seeks judicial review of the Utah Labor
Commission’s (Commission) order dismissing her claim for
permanent total disability. We decline to disturb the
Commission’s decision.

¶2 In October 2011, Wallace, employed at Amangiri Resort in
southern Utah, fell while descending some stairs as she was
leaving the lobby to retrieve an item from a guest’s car. She
received medical care for her injuries. Subsequently, Wallace
made a workers’ compensation claim and asserted that the
accident resulted in a permanent disability, preventing her from
finding work. Respondents Amangiri Resort, the Commission,
Wallace v. Labor Commission

and Workers’ Compensation Fund (collectively, WCF) denied
that Wallace was permanently and totally disabled.

¶3 After an evidentiary hearing in January 2015, the
administrative law judge (ALJ) referred Wallace’s case to a
medical panel, which issued a report in July 2016 (First MPR).
The First MPR contained the following opinions: (1) Wallace
can sit for “40–45 minute intervals over an 8 hour workday
with 5 minute breaks standing or reclining between
each interval”; (2) while Wallace’s use of oxycodone does not
prevent her from driving to and from work, she should not be
assigned driving assignments as part of her work schedule; (3)
Wallace is “able to focus and concentrate to receive instructions,
remember those instructions and carry them out on a continual
basis over an 8 hour workday”; (4) Wallace can perform
workplace tasks involving bending, stooping, lifting objects,
twisting, turning, sitting, walking, reaching, pushing, and
pulling; (5) Wallace can manage her “low back pain in a light
work setting” and “is able to work a light duty work
assignment”; (6) Wallace “has the motor function to use her
hands, arms, legs and feet in a coordinated pattern in the
workplace”; and (7) “[l]ack of leg pain and radiculopathy[1] allow
[Wallace] to pursue light work activities and activities of daily
living.”

¶4 In August 2016, Wallace filed an objection to the
First MPR. Wallace’s objection included a letter from a physician
(Medical Opinion) and a letter from a vocational expert
(Vocational Opinion), both written in response to the First MPR.
In November 2017, the medical panel issued a second report

1. “Radiculopathy” refers to “[a]ny disease of a nerve root.”
Radiculopathy, Taber’s Cyclopedic Medical Dictionary 1963 (21st
ed. 2009).

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(Second MPR), substantially the same as the First MPR. 2 Wallace
also filed an objection to the Second MPR.

¶5 In the Findings of Fact, Conclusions of Law, and
Order denying compensation (ALJ Decision), the ALJ excluded
from evidence the Vocational Opinion because it was not timely
and did “not go to the medical panel objection but appear[ed] to
be a back door attempt to place new evidence into the record
which denies [WCF’s] right of due process to counter the
evidence.” The ALJ also excluded the Medical Opinion because
it was not timely and offered “duplicative and irrelevant”
evidence.

¶6 Wallace sought review by the Commission. In its
order affirming the ALJ Decision, the Commission agreed
with the ALJ’s exclusion of the Vocational Opinion and
the Medical Opinion from evidence. Citing rule R602-2-1(H)(5)
of the Utah Administrative Code, the Commission explained
that “[l]ate-filed medical records may or may not be admitted at
the discretion of the ALJ by stipulation or for good cause
shown.” The Commission further explained that Wallace had
“not offered good cause for such evidence to be admitted.”
Specifically, the Commission stated, “[The Medical Opinion] is
duplicative of [the physician’s] other treatment notes and
opinions already in the record.” Regarding the Vocational
Opinion, the Commission stated, “There is nothing in the record
to suggest that [Wallace] could not have obtained and submitted
[the Vocational Opinion] prior to the close of the evidentiary
period, which occurred at the conclusion of the hearing on
[Wallace’s] claim.” Wallace now seeks judicial review of the
Commission’s decision.

2. In our review, the two reports appear to be identical apart
from the date of issue and formatting.

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ISSUES AND STANDARDS OF REVIEW

¶7 The first issue is whether the Commission violated its
own rules when it declined to consider medical evidence
submitted after a hearing. The standard of review for an
agency’s application and interpretation of its own rules is abuse
of discretion. Brown & Root Indus. Service v. Industrial Comm’n of
Utah, 947 P.2d 671, 677 (Utah 1997) (“When reviewing the
Commission’s application of its own rules, this court will not
disturb the agency’s interpretation or application of one of the
agency’s rules unless its determination exceeds the bounds of
reasonableness and rationality.”). “Thus, we will overturn the
agency’s interpretation only if that interpretation is an abuse of
discretion.” Id.

¶8 The second issue is whether the Commission’s conclusion
that Wallace was not limited in her ability to perform the
essential functions of her prior work was supported by the
evidence. “This is an issue of fact reviewed under a substantial
evidence standard. Under this standard, we must uphold the
Commission’s factual findings if such findings are supported by
substantial evidence based upon the record as a whole.”
Washington County School Dist. v. Labor Comm’n, 2015 UT 78, ¶ 18,
358 P.3d 1091 (cleaned up).

ANALYSIS

I. Discretion to Admit or Exclude New Evidence

¶9 Wallace argues that the Commission erred when it
excluded the Medical Opinion and the Vocational Opinion from
consideration. The Utah Administrative Code grants the ALJ
discretion as to whether to admit new evidence. Rule R602-2-
1(I)(8) states that the evidentiary record is “closed at the
conclusion of the hearing, and no additional evidence will be

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accepted without leave of the administrative law judge.” And
rule R602-2-2(B)(4) states,

A hearing on objections to the [medical] panel
report may be scheduled if there is a 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 Administrative Law Judge may, in
lieu of a hearing, re-submit the new evidence to the
panel for consideration and clarification.

Finally, rule R602-2-1(H)(5) clarifies, “Late-filed medical records
may or may not be admitted at the discretion of the
administrative law judge by stipulation or for good cause
shown.”

¶10 The plain language of these rules grants the ALJ
discretion to exclude or admit the Medical Opinion and the
Vocational Opinion. After the close of the hearing, no new
evidence will be accepted “without leave” of the ALJ. Utah
Admin. Code R602-2-1(I)(8). Thus, while the rules clearly allow
the submission of “[l]ate-filed medical records,” such submission
is “at the discretion” of the ALJ and “by stipulation or for good
cause shown.” Id. R602-2-1(H)(5). Then, if the new evidence is
admitted, the ALJ “may” schedule a hearing on the objections or
“may . . . re-submit the new evidence to the panel for
consideration and clarification.” Id. R602-2-2(B)(4). We conclude
that it was reasonable and rational for the Commission to
interpret and apply the rules as affording discretion to the ALJ in
determining whether to admit or exclude the Medical Opinion
and the Vocational Opinion. See Brown & Root Indus. Service v.
Industrial Comm’n of Utah, 947 P.2d 671, 677 (Utah 1997). Thus,
the only question left for us to address is whether the
Commission abused its discretion in excluding the evidence in
question.

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¶11 Regarding the Medical Opinion, the rules allow
submission of “conflicting medical testimony” only if the
evidence offered is “new.” Utah Admin. Code R602-2-2(B)(4).
But nothing in the Medical Opinion is new. Wallace had already
submitted more than 240 pages of medical records from her
physician. The Medical Opinion that Wallace attempted to
submit consists of a one-page summary of the previously
submitted medical records but does not claim to add any new
information. Rather than offering new evidence, the Medical
Opinion largely consists of a response by Wallace’s physician
expressing his disagreement with the vocational conclusions of
the medical panel. Indeed, Wallace admits that the Medical
Opinion “considered” the First MPR’s “implications for
[Wallace’s] ability to work.” Wallace also claims that the Medical
Opinion “pointed out some of the evidence that the [medical
panel] had not considered.” From these observations, Wallace
argues that the Medical Opinion is “new medical evidence
considering the [First MPR].” We are not persuaded. Such logic
would render any letter challenging a medical panel’s
conclusions “new written conflicting medical evidence.” Id.
R602-2-2(B)(4). Thus, while the Medical Opinion is certainly
responsive to the First MPR, the information it contains is not
properly medical or new, and the Commission did not act
unreasonably in rejecting it as duplicative and cumulative. See
Brady v. Labor Comm’n, 2010 UT App 58U, para. 12 (stating that
although a doctor’s letter disagreeing with a medical panel’s
findings “offer[ed] a different interpretation of the medical
evidence[,] . . . [this court could not] say that the ALJ acted
unreasonably in concluding that [its contents] did not rise to the
level of new written conflicting medical evidence” (cleaned
up)). 3

3. Indeed, a careful reading of the Medical Opinion Wallace
sought to submit reveals that it contained no discernible new
(continued…)

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¶12 Regarding the Vocational Opinion, the Commission did
not abuse its discretion in excluding it from evidence, because it
was not timely and Wallace offered no good cause for her delay
in filing it. 4 Wallace had ample opportunity to submit the

(…continued)
medical evidence. Rather, it appears to echo the Vocational
Opinion in offering only vocational conclusions:
[T]he recommendation that [Wallace] be allowed to
take a break to change positions and rest for 5
minutes every 40 minutes is a clear indicator that
she still has disability and requires special
accommodations in any work environment. In all
practicality, these accommodations are not
conducive to a 40-hour work week in a competitive
work environment and will likely discourage any
potential employer from hiring her. . . . The
accommodations required by [Wallace’s] work-
related injury and chronic back pain are by
themselves a likely “deal breaker” for any potential
employer. . . . I sincerely feel that [Wallace] is not
employable.
Thus, because it is not properly a medical report, the Medical
Opinion does not qualify as “new written conflicting medical
evidence.” See Utah Admin. Code R602-2-2(B)(4); infra note 4.

4. The Vocational Opinion—because it is a vocational report and
not a medical report—does not fall under rule R602-2-2(B)(4) of
the Utah Administrative Code, which states, “A hearing on
objections to the [medical] panel report may be scheduled if
there is a proffer of conflicting medical testimony showing a
need to clarify the medical panel report.” Similarly, rule R602-2-
1(H)(5) is limited to the submission of untimely filed “medical
records.” While Wallace does not argue it, rule R602-2-1(I)(8)
appears to give an ALJ discretion to admit non-medical
(continued…)

20180677-CA 7 2019 UT App 121
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Vocational Opinion before the close of the hearing. Wallace was
injured in October 2011. She filed for a hearing in May 2014, and
her hearing was in January 2015. Therefore, she had eight
months from the time she filed for the hearing and over three
years from the time of her accident to obtain a vocational report.
Yet when objecting to the First MPR in July 2016, Wallace was
able to file the Vocational Opinion in less than a month.

¶13 But in seeking review, Wallace argues that she was unable
to file the Vocational Opinion until the First MPR was issued.
Wallace argues that the Vocational Opinion was based “on the
First [MPR] and specifically considered the [medical panel’s]
restrictions and conclusions regarding [Wallace’s] ability to
work. How can [the Vocational Opinion] or any other evidence
that relies on the contents of a [MPR] be submitted prior to the
evidentiary hearing, referral to a [medical panel] and after a
[MPR] is issued?” But Wallace’s analysis here is flawed because
she does not consider the fact that all the evidence relied on in
preparing the Vocational Opinion was readily available to the
vocational expert before the close of the hearing. Wallace offers
no explanation—apart from observing that the Vocational
Opinion was responsive to the First MPR—to explain why the
Vocational Opinion could not have been submitted at the
hearing. 5 Given that all the medical evidence was readily

(…continued)
testimony after the close of a hearing. See Utah Admin. Code
R602-2-1(I)(8) (stating that after “the conclusion of the
hearing, . . . no additional evidence will be accepted without
leave of the administrative law judge”).

5. We note that the Vocational Opinion mischaracterized both
MPRs, which stated that Wallace is able to sit “for 40–45 minute
intervals over an 8 hour workday with 5 minute breaks standing
or reclining between each interval.” The Vocational Opinion
(continued…)

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available well before the hearing, Wallace should have
submitted a vocational report that anticipated the range of work
restrictions that might be imposed. See Quast v. Utah Labor
Comm’n, 2017 UT 40, ¶ 26, 424 P.3d 15 (stating that “the
employee bears the burden of proof on all elements of a
permanent total disability claim”). Further, WCF’s vocational
expert testified at the hearing; likewise, there is no reason
Wallace could not have called her vocational expert to testify.
Thus, because the Vocational Opinion was untimely, we hold
that the Commission did not abuse its discretion in rejecting it.

(…continued)
interpreted this statement as requiring potential employers to
make unreasonable accommodations that would be
“inconsistent with sustained employment” for Wallace. The
vocational expert wrote, “In my opinion, scheduled off-task time
every 40 to 45 minutes falls in the [unreasonable] category and
would not be accommodated in a competitive work
environment.” The Vocational Opinion assumes that standing
for five minutes every 40–45 minutes would require Wallace to
be “off-task,” resulting in an unreasonable accommodation. But
the Vocational Opinion itself states that sedentary work
“involves sitting most of the time, but may involve walking or
standing for brief periods of time.” In addressing these five
minute periods, the First MPR states that Wallace required “brief
rest periods” after 40–45 minutes of working. (Emphasis added.)
Contrary to the Vocational Opinion’s characterization, the First
MPR does not say these rest periods are breaks requiring
Wallace to be “off-task.” Thus, under the Vocational Opinion’s
own logic and the recommendations in the First MPR, allowing
Wallace to stand for five minutes every 40–45 minutes would not
necessarily require her to be “off-task.” Rather, she could
continue to fulfill her work-related duties while standing for
those five minutes without being “off-task.”

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II. Sufficiency of the Evidence

¶14 Wallace contends that the decision of the Commission
was not supported by substantial evidence. Asserting that the
Medical Opinion and the Vocational Opinion represent the only
evidence evaluating and analyzing the First MPR, Wallace
argues that the Commission was required to rely only on these
two opinions. But as we have just explained, these two opinions
were properly excluded from evidence. The question remains
whether the Commission based its findings on substantial
evidence. “We will affirm so long as the Commission’s findings
are based on substantial evidence, even if another conclusion
from the evidence is permissible.” Brady v. Labor Comm’n, 2010
UT App 58U, para. 7 (cleaned up).

¶15 The Commission based its conclusions on the opinions of
a medical doctor and a vocational expert presented before and
during the hearing. Wallace claims that this evidence is of
“limited value” because it was offered before the First MPR was
issued. We disagree. Our review requires us to consider the
totality of the record. See Utah Code Ann. § 63G-4-403(4)(g)
(LexisNexis 2016) (“The appellate court shall grant relief only if
. . . the agency action is based upon a determination of fact,
made or implied by the agency, that is not supported by
substantial evidence when viewed in light of the whole record
before the court . . . .”); see also Washington County School Dist. v.
Labor Comm’n, 2015 UT 78, ¶ 18, 358 P.3d 1091 (stating that we
“uphold the Commission’s factual findings if such findings are
supported by substantial evidence based upon the record as a
whole” (cleaned up)). And the testimony of the witnesses in the
hearing, as well as the two medical panel reports, provided
substantial evidence upon which the Commission could rely in
reaching its decision. In addition, the medical panel itself relied
on a substantial medical record—over 480 pages submitted to
the ALJ and later to the Commission—in reaching its
conclusions.

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¶16 “Here, although [Wallace] may have competing medical
theories, . . . the Commission’s conclusions were certainly
supported by substantial evidence,” see Brady, 2010 UT App 58U,
para. 7, that Wallace could manage her “low back pain in a light
work setting,” “is able to work a light duty work assignment,”
and therefore is not permanently and totally disabled for the
purpose of workers’ compensation benefits.

CONCLUSION

¶17 The Commission did not err in affirming the ALJ’s
decision to exclude the Medical Opinion and the Vocational
Opinion. The Medical Opinion did not offer new evidence but
only duplicated evidence that had already been submitted. The
Vocational Opinion was untimely, and Wallace was unable to
show good cause for her delay in submitting it. Furthermore,
substantial evidence supported the Commission’s conclusion
that Wallace was not totally disabled for the purpose of workers’
compensation benefits. Accordingly, we decline to disturb the
Commission’s decision.

20180677-CA 11 2019 UT App 121