Sysco Corp v. Labor Commission

2021 UT App 126
THE UTAH COURT OF APPEALS
SYSCO CORPORATION AND AMERICAN ZURICH INSURANCE,
Petitioners,
v.
LABOR COMMISSION AND PAUL ROBERTS,
Respondents.
Opinion
No. 20200058-CA
Filed November 18, 2021
Original Proceeding in this Court
Brad J. Miller, Attorney for Petitioners
Brian D. Kelm, Attorney for Respondent
Paul Roberts
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 While working as a salesperson for Sysco Corporation,
Paul Roberts was injured in four work-related automobile
accidents over several years. Roberts recovered from the first
three accidents but was permanently injured by the last accident.
Roberts sought and was awarded permanent partial benefits
and, later, permanent total disability benefits for his injuries.
Sysco and its insurer, American Zurich Insurance, (collectively,
Sysco) seek judicial review of the Labor Commission’s (the
Commission) determination that the last accident permanently
aggravated Roberts’s cervical-spine condition and that he was
entitled to permanent total disability benefits. We decline to
disturb the Commission’s decision.

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BACKGROUND
¶2 In the course of his employment with Sysco, Roberts
suffered injuries in four car accidents between March 2005 and
January 2014. Roberts eventually returned to work following
each of the first three accidents. But after the final accident in
2014, Roberts could not return to work due to neck and back
pain from his injuries and was awarded permanent partial
disability benefits, based on the conclusions of a medical panel.
Roberts attempted to return to full-time work briefly in March
2015, but chronic neck, cervical, spine, and lower back pain,
along with restrictions on his driving and his ability to sit for
long periods of time, rendered him unable to do so. Roberts’s
condition worsened, and he eventually filed a claim for
permanent total disability benefits by filing four applications for
hearing—one for each accident—asserting that together the
accidents had rendered him permanently and totally disabled.
¶3 Following a hearing, the administrative law judge (ALJ),
Judge Trayner, referred Roberts’s claim to the same medical
panel that had evaluated him two years earlier regarding his
permanent partial disability claim. This time, the medical panel
did not meet with Roberts or examine him but instead, without
approval from Judge Trayner, referred him to a non-physician
for a functional capacity evaluation (FCE). Relying on that FCE,
the panel opined that Roberts could function at a level that
would preclude an award of permanent total disability benefits.
¶4 In response to Roberts’s concerns about the panel’s
reliance on the FCE, Judge Trayner asked the medical panel for
clarification of its methods. Upon receiving the clarification,
Roberts objected to the medical panel report on the ground that
the panel had not examined him and had inappropriately relied
on the conclusions of the FCE—conducted by a non-physician
and “notorious insurance defense designee[]”—rather than
conducting its own evaluation. Sysco, on the other hand, asked

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Judge Trayner to rely on the panel report to conclude that
Roberts was not permanently disabled.
¶5 Before Sysco’s time to respond to Roberts’s objection had
passed, Judge Trayner sent the parties a letter explaining that
she intended to “reject the current medical panel report and
reassign the case to a new chair for evaluation.” She expressed
concern with the adequacy of the techniques used in the FCE
and stated that the Commission’s general practice was not to
include clinicians on medical panels if they “perform
independent medical examinations on behalf of [either]
respondents or petitioners to avoid any appearance of bias.”
Judge Trayner ultimately rejected the medical panel report
because the panel had adopted the FCE “without explanation or
consideration of the medical records in the evidentiary record”
and without providing “an explanation of the reasoning behind
the panel’s conclusions.” She explained, “[T]he panel’s adoption
of [the FCE] without explanation does not assist the Court in
making medical findings in this matter. There was no collegial
review of the medical issues. The current medical report contains
glaring deficiencies and contradictions.”
¶6 Judge Trayner then appointed a new medical panel,
which ultimately concluded that Roberts had significant
functional limitations affecting his ability to work. Sysco
objected to Judge Trayner’s rejection of the original medical
panel’s report, her appointment of the new medical panel, and
the new panel’s conclusions. At that time, Sysco also attempted
to submit a surveillance video that purported to depict Roberts
“using a shovel to dig up grass and work on his sprinkler
system,” bending and kneeling, and driving a vehicle without
any apparent pain or difficulty.
¶7 Roberts moved to strike the surveillance video, asserting
that the new video evidence was untimely, coming more than a
year after the evidentiary hearing on his claim, and that Sysco

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had provided no foundation to support its claim that the video
even depicted Roberts.1
¶8 A different ALJ, Judge Newman, considered and rejected
Sysco’s objection to the referral to a new medical panel and its
request that the original medical panel’s report be admitted into
evidence, and he granted Roberts’s motion to strike the
surveillance evidence. Specifically, Judge Newman agreed with
Judge Trayner that the original medical panel’s report should be
rejected because it “was grossly deficient in its analysis or
explanation of its conclusions as to why it adopted [the] FCE
findings.” Judge Newman also declined to admit the
surveillance video into evidence because Sysco had “not
obtained leave of the [ALJ] to accept additional evidence” after
the record was closed. See Utah Admin. Code R602-2-1(I)(8)
(“Subject to the continuing jurisdiction of the Labor Commission,
the evidentiary record shall be deemed closed at the conclusion
of the hearing, and no additional evidence will be accepted
without leave of the administrative law judge.”). Judge Newman
adopted the second medical panel’s findings and ultimately
awarded Roberts permanent total disability benefits.
¶9 Sysco petitioned the Commission for review of the ALJs’
decisions, asserting that Judge Trayner had denied the company
due process when she issued an order rejecting the original
medical panel’s report only seven days after Roberts objected,
since Sysco should have had ten days to respond to the
objection. Sysco also asserted that Judge Trayner erred by
rejecting the first panel report. Finally, Sysco argued that Judge
Newman should have considered the surveillance video.
1. Roberts maintains that the video likely depicted his brother,
who had been doing work on his yard for him.

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¶10 The Commission rejected Sysco’s argument that it had
been denied due process, pointing out that the ALJs had
“considered Sysco’s arguments on the issue and the Commission
is doing the same on review.” The Commission also upheld
Judge Trayner’s decision to reject the original medical panel’s
report, explaining,
The first panel’s report in this matter improperly
referred Mr. Roberts . . . for [an FCE] without Judge
Trayner’s prior authorization and then merely
deferred to [the FCE] findings without any
meaningful analysis of the medical evidence in the
record. As Judge Trayner determined, the first
panel’s actions represent a dereliction of its
responsibility in this matter.
Finally, the Commission agreed with Judge Newman that the
submission of the surveillance video was untimely. Accordingly,
the Commission upheld the award of permanent total disability
benefits to Roberts.
¶11 Sysco now seeks judicial review of the Commission’s
decision upholding the award of permanent total disability
benefits and precluding consideration of the additional
surveillance video evidence.
ISSUES AND STANDARDS OF REVIEW
¶12 First, Sysco asserts that it was denied due process when
Judge Trayner ruled on Roberts’s objection to the original
medical panel’s report before allowing Sysco its full time to
respond. “Constitutional issues, including questions regarding
due process, are questions of law that we review for
correctness.” Fastenal v. Labor Comm’n, 2020 UT App 53, ¶ 12, 463
P.3d 90 (quotation simplified).

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¶13 Next, Sysco asserts that the Commission erred in
upholding Judge Trayner’s decision to reject the original medical
panel’s report and appoint a new medical panel. “We generally
review the Commission’s decisions regarding appointment of
medical panels for abuse of discretion . . . .” Graphic Packaging
Int’l Inc. v. Labor Comm’n, 2021 UT App 82, ¶ 21, 495 P.3d 228.
“[A]s the ultimate fact-finder, . . . the administrative law judge
retains the discretion to reject the medical panel’s
recommendation.” Ramos v. Cobblestone Centre, 2020 UT 55, ¶ 31,
472 P.3d 910. When it does so, the ALJ has the discretion to
“make contrary findings” or “appoint a second medical panel.”
See Graphic Packaging, 2021 UT App 82, ¶ 26.
¶14 Finally, Sysco challenges the Commission’s decision to
exclude the surveillance video. “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.
ANALYSIS
I. Due Process
¶15 Sysco first asserts that it was denied due process with
respect to the exclusion of the original medical panel’s report
because Judge Trayner excluded the report before affording
Sysco its full time to respond to Roberts’s objection under the
Utah Administrative Code.
¶16 Rule R602-2-2 of the Utah Administrative Code allows a
party ten days to respond to another party’s objection to a
medical panel report. Utah Admin. Code R602-2-2(B)(1). Here,
Judge Trayner rejected the original medical panel’s report only
seven days after Roberts filed his objection to the report and
before receiving a response from Sysco. However, as the
Commission pointed out, Sysco did ultimately file a response to

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Roberts’s objection, which Judge Newman considered on the
merits. And the Commission also considered the merits of
Sysco’s argument that Judge Trayner should not have rejected
the original medical panel’s report.
¶17 On judicial review, Sysco does not address the
Commission’s determination that the company received due
process or explain why Judge Newman’s and the Commission’s
ultimate consideration of its arguments on the merits did not
afford it adequate due process. See Color Country Mgmt. v. Labor
Comm’n, 2001 UT App 370, ¶ 29, 38 P.3d 969 (explaining that
even if a party was initially denied due process by an ALJ’s
failure to consider evidence, subsequent analysis of the evidence
by a second ALJ and the Commission remedied the situation).
Thus, we decline to disturb the Commission’s determination that
Sysco received due process.
II. Rejection of the Medical Panel Report
¶18 Sysco next argues that the Commission erred in
upholding Judge Trayner’s decision to reject the original medical
panel’s report. However, Sysco never directly engages with the
Commission’s reasoning for rejecting the report. The
Commission explained,
The first panel’s report in this matter improperly
referred Mr. Roberts . . . for [an FCE] without Judge
Trayner’s prior authorization and then merely
deferred to [the FCE] findings without any
meaningful analysis of the medical evidence in the
record. As Judge Trayner determined, the first
panel’s actions represent a dereliction of its
responsibility in this matter.
¶19 Instead of addressing this reasoning directly, Sysco raises
numerous arguments for why the original medical panel’s report
should have been accepted, without addressing Judge Trayner’s

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ultimate ground for rejecting the medical panel’s report. First,
Sysco argues that there was no evidence of actual bias on the
part of the panel members. But although Judge Trayner did
express concern that there was an “appearance of bias” with
respect to the non-physician who conducted the FCE because he
also conducted independent medical examinations for insurance
companies, she also justified the rejection of the medical panel
on the independent ground that the medical panel adopted the
FCE “without explanation or consideration of the medical
records in the evidentiary record.” And this second ground is
the one that Judge Newman and the Commission focused on
and agreed with in rejecting Sysco’s objections to Judge
Trayner’s decision.
¶20 Sysco also asserts that Judge Trayner had praised and
relied on the same panel’s report when she examined Roberts’s
permanent partial disability claim two years earlier, that the
panel members had reviewed Roberts’s medical records despite
not personally examining him again, and that Judge Trayner’s
concerns with the FCE were speculative. But even if we accept
all these points, none of them go to the matter the ALJs and the
Commission were concerned with: that the medical panel
“simply repeated the results of a functional capacity evaluation
that it was not authorized to order without any meaningful
analysis from the panel doctors assigned for that purpose.” The
fact that the same medical panel produced a quality report two
years earlier says nothing about the quality of its subsequent
report. Likewise, the fact that the panel doctors had Roberts’s
records in front of them does not change the fact that their report
ultimately relied on the FCE rather than their own conclusions.
And even assuming there were no flaws whatsoever in the FCE,
it was still problematic for the medical panel to rely on it without
conducting its own analysis.
¶21 Ultimately, none of these arguments does anything to
contest the ALJs’ and the Commission’s conclusions that the

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medical panel delegated its duties to a non-physician who was
not appointed to the medical panel and that the medical panel
essentially adopted the results of the FCE without conducting
any independent analysis.
¶22 The decision whether to reject the medical panel report is
discretionary. Bade-Brown v. Labor Comm’n, 2016 UT App 65, ¶ 8,
372 P.3d 44. Here, the Commission articulated a reasonable basis
for rejecting the medical panel’s report, and Sysco has not
carried its burden of demonstrating an abuse of discretion. See
Right Way Trucking, LLC v. Labor Comm’n, 2015 UT App 210, ¶ 15,
357 P.3d 1024 (rejecting an employer’s argument where it “failed
to engage with the ALJ’s reasoning”). Thus, we decline to
disturb the Commission’s decision affirming the rejection of the
first medical panel report.
III. Appointment of a New Medical Panel
¶23 Sysco also challenges Judge Trayner’s appointment of a
new medical panel. However, its argument hinges entirely on its
assertions that it was denied due process when Judge Trayner
rejected the first report and that Judge Trayner exceeded her
discretion in rejecting the first report. Because we have rejected
both of these arguments, we are left with no basis for setting
aside Judge Trayner’s decision to appoint a new medical panel,
which is generally a matter within the ALJ’s discretion. See
Graphic Packaging Int’l Inc. v. Labor Comm’n, 2021 UT App 82,
¶ 26, 495 P.3d 228 (holding that an ALJ may, “within its
discretion in appropriate cases, . . . appoint a second medical
panel” and that such appropriate cases include those where
there are issues with the first medical panel’s report, such as its
failure to adequately fulfill the ALJ’s directives).
IV. New Evidence
¶24 Finally, Sysco argues that the Commission should have
considered the surveillance video evidence allegedly showing

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Roberts working in his yard. However, Sysco once again fails to
engage with the Commission’s analysis of this issue.
¶25 The Utah Administrative Code dictates that additional
evidence will not be accepted after the evidentiary hearing
without leave of the ALJ. Utah Admin. Code R602-2-1(I)(8).
Accordingly, Judge Newman rejected the surveillance video
evidence on the ground that Sysco had not obtained leave to
reopen the record and submit the new evidence. The
Commission agreed with Judge Newman’s reasoning and
affirmed his decision.
¶26 On review, Sysco has made no attempt to explain why it
should not have been required to comply with the Utah
Administrative Code and instead asserts merely that there was
“good cause” to submit the surveillance video. Sysco does not
assert that the Commission abused its discretion in enforcing the
Administrative Code’s requirements, and we therefore decline to
disturb the Commission’s decision to exclude the surveillance
video.
CONCLUSION
¶27 Sysco has not demonstrated that it was denied the
opportunity to argue against the rejection of the original medical
panel’s report and therefore has not established that it was
denied due process. Further, because Sysco has not engaged
with the Commission’s reasoning for rejecting the original
medical panel’s report, it has not met its burden to show that the
Commission exceeded its discretion. Because we reject Sysco’s
arguments on both of these issues, we also reject its assertion
that the Commission erred in appointing a second medical
panel. Finally, Sysco does not adequately challenge the
Commission’s decision to exclude the surveillance video
evidence. Accordingly, we decline to disturb the Commission’s
decision.