Graphic Packaging Intl v. Labor Commission

2021 UT App 82
THE UTAH COURT OF APPEALS
GRAPHIC PACKAGING I NTERNATIONAL I NC .
AND A MERICAN Z URICH I NSURANCE,
Petitioners,
v.
LABOR C OMMISSION AND JOSE TORRES,
Respondents.
Opinion
No. 20200210-CA
Filed July 22, 2021
Original Proceeding in this Court
Brad J. Miller and Trent D. Holgate,
Attorneys for Petitioners
Mark J. Sanchez, Attorney for
Respondent Jose Torres
JUDGE R YAN M. HARRIS authored this Opinion, in which J UDGES
M ICHELE M. C HRISTIANSEN F ORSTER and D AVID N. M ORTENSEN
concurred.
HARRIS, Judge:
¶1 	While working for Graphic Packaging International Inc.
(the Company), Jose Torres injured his back, then reinjured it at
work a couple of years later. After Torres filed a claim for
workers’ compensation benefits, an administrative law judge
(the ALJ) appointed a medical panel to assist with conflicting
medical opinions on certain issues, but the panel took a long
time to answer the ALJ’s questions and was not able to respond,
to the satisfaction of the ALJ, before its members retired. The ALJ
then appointed a second medical panel, which reached different
conclusions than the first panel. Eventually, the Utah Labor
Commission (the Commission) awarded Torres the temporary
total workers’ compensation benefits he sought. The Company

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and 	its 	insurer 	seek 	judicial 	review 	of 	that 	determination,
specifically challenging the ALJ’s decision to appoint a second
medical 	panel 	as 	well 	as 	the 	sufficiency 	of 	the 	evidence
supporting 	the 	Commission’s 	determination 	that 	Torres
reasonably refused the Company’s light-duty work offer. We
decline to disturb the Commission’s award.
BACKGROUND1
¶2 	Torres worked for the Company for more than fifteen
years as a printing press operator, a job that required him not
only to operate the printing press machine, but also to prepare
materials for printing. During his shifts, which “lasted up to
twelve hours,” he “had to frequently move printing cylinders,
paper, and buckets of ink,” as well as “an 80-pound . . . metal
part” that he had to lift “three to ten times” a day.
¶3 	On 	September 	16, 	2011, 	Torres 	“was 	calibrating 	the
machine . . . when he slipped on some hydraulic oil on the
floor.” He “lost his balance and twisted his body hard” in an
attempt to grab the machine and regain his balance, but as he
was twisting, he “felt an immediate cold sensation in his low
back.” In this opinion, we refer to these events as the “2011
Accident.”
¶4 	Immediately 	following 	the 	2011 	Accident, 	Torres
attempted to work “for about a week,” but was unable to
“tolerate his duties” and therefore sought medical attention. In
October, Torres received a magnetic resonance imaging scan (the
2011 MRI), which indicated “disc bulges with superimposed
1. “In reviewing an order from the Commission, we view the
facts in the light most favorable to the Commission’s findings
and recite them accordingly.” JBS USA v. Labor Comm’n, 2020 UT
App 86, n.1, 467 P.3d 905 (quotation simplified).

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extrusions at the L4-[L]5 and L5-S1 levels of [his] lumbar spine.”2
Initial reviewing physicians diagnosed Torres with “[m]ultilevel
degenerative disc disease,” “L4-L5 disc extrusion with left L5
radiculopathy,” and “severe impingement” at both the L4-L5
and L5-S1 levels.3 Torres then visited an occupational health
physician in December, who examined Torres, reviewed the
2011 	MRI, 	and 	afterward 	confirmed 	the 	diagnosis 	of 	a
2. 	“The 	vertebral 	column, 	or 	backbone, 	is 	made 	up 	of
33 vertebrae that are separated by spongy dis[c]s,” and these discs
can, over time with age or as the result of injury, “rupture[], or
herniate[].” 	Lumbar 	Disk 	Disease 	(Herniated 	Disk), 	Johns
Hopkins Medicine, https://www.hopkinsmedicine.org/health/c
onditions-and-diseases/lumbar-disc-disease-herniated-disc [ht
tps://perma.cc/3ZVR-87V5]. “Most dis[c] herniations happen
in the lower lumbar spine, especially between the . . . L4-[L]5 and
L5-S1 levels.” Id. Disc extrusion is one type of herniation where
“the outer part of the spinal disc ruptures, allowing the inner,
gelatinous part of the disc to squeeze out” into the spinal column.
See Washington County School Dist. v. Labor Comm’n, 2013 UT App
205, ¶ 5 n.4, 309 P.3d 299 (quotation simplified).
3. Degenerative disc disease is essentially “arthritis of the spine,”
where “cartilage in the spine joints . . . wear[s] out” over time
from any “combination of factors, such as doing a lot of lifting,
. . . 	or 	. 	. 	. 	an 	injury 	to 	the 	spine.” 	Degenerative 	Disc
Disease, Johns Hopkins Medicine, https://www.hopkinsmedici
ne.org/health/conditions-and-diseases/degenerative-disc-dise
ase [https://perma.cc/CQJ8-SADA]. 	“[R]adiculopathy 	is 	a
disease 	process 	marked 	by 	nerve 	compression,” 	or
“impingement,” caused by (among other things) pressure from
herniated disc fluid, which leads to pain, numbness, and other
symptoms. 	Jason 	David 	Eubanks, 	Cervical 	Radiculopathy:
Nonoperative Management of Neck Pain and Radicular Symptoms, 81
Am. Family Physician 33, 33–34 (2010).

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“[h]erniated L4-[L]5 disc” and related radiculopathy, as well as
“multilevel degenerative dis[c] disease at virtually every level.”
Based on that diagnosis, the physician referred Torres to a
surgeon (Surgeon), who in turn recommended surgery; Torres
then “underwent discectomy surgery and a lumbar fusion at L5-
S1 in April 2012.”4
¶5 	In October 2012, after recovering from surgery, Torres
returned to full-time work at the Company. He was given
“permanent 	work 	restrictions” 	barring 	him 	from 	bending,
lifting 	more 	than 	forty 	pounds, 	and 	climbing 	stairs 	more
than 	occasionally. 	At 	his 	follow-up 	visit 	with 	Surgeon 	in
December 	2012, 	Surgeon 	characterized 	Torres’s 	recovery 	as
being “at maximum medical improvement for work related
activities,” but ordered that he “undergo an impairment rating
to 	determine 	permanent 	restrictions.” 	Torres 	underwent 	an
impairment assessment in February 2013, and was given a 13%
whole person impairment rating based “entirely” on the 2011
Accident.
¶6 	Torres continued full-time work for a time under these
restrictions, but in July or August 2013, during one of his regular
shifts, Torres “miscalculated the height of a step,” and as he
stepped down he suddenly developed back pain and “felt like
his leg was giving out.” In this opinion, we refer to these events
as the “2013 Accident.”
4. During a discectomy, “an orthopedic surgeon takes out part
of the damaged disc” in order to alleviate pressure caused
by disc herniation on nerves that are attached to the spinal
cord. 	Minimally 	Invasive 	Lumbar 	Discectomy, 	Johns 	Hopkins
Medicine, https://www.hopkinsmedicine.org/health/treatment-te
sts-and-therapies/minimally-invasive-lumbar-discectomy [https:
//perma.cc/RMK8-E2U9].

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¶7 	Over the ensuing weeks, the pain in his lower back
worsened and he continually felt “pain radiating down his left
leg,” prompting him to visit the emergency room and schedule
an appointment with Surgeon. In the emergency room, Torres
rated his pain at “8/10,” and he described to Surgeon how it
impacted his ability to sit and made it so he could “hardly
walk.” By the time he visited Surgeon on August 16, Torres had
stopped working due to the pain. Surgeon reviewed Torres’s X-
rays and noted “[n]o significant changes,” opining that he was
“having an acute episode of back pain” that was “likely due to a
disc 	abnormality.” 	Surgeon 	initially 	determined 	that 	Torres
would be “[u]nable to return to work” until at least August 28.
But later, after a follow-up visit on September 10, Surgeon
released Torres to return to work at “modified duty,” meaning
that he could work only four hours a day and lift no more than
ten pounds.
¶8 	Torres was given another MRI scan on November 15, 2013
(the 2013 MRI), which revealed a “grade 1 disc extrusion at the
L4-[L]5 level producing mild to moderate stenosis,”5 as well as
“neurologic impingement.” At two follow-up visits after the
2013 MRI, Surgeon noted that he had attempted to get Torres
back to work by allowing modified duty work restrictions, but
the 	Company 	had 	been 	“unable 	to 	accommodate 	any
restrictions.” 	Surgeon 	at 	first 	attempted 	to 	treat 	the 	2013
Accident 	with 	physical 	therapy, 	but 	by 	December 	2013 	he
opined 	that 	therapy 	was 	not 	effectively 	treating 	Torres’s
symptoms, 	and 	recommended 	that 	Torres 	undergo 	another
5. 	“Spinal 	stenosis 	is 	a 	narrowing 	of 	the 	spaces 	within
your 	spine, 	which 	can 	put 	pressure 	on 	the 	nerves 	that
travel 	through 	the 	spine.” 	Spinal 	Stenosis, 	Mayo 	Clinic,
https://www.mayoclinic.org/diseases-conditions/spinal-stenosis/
symptoms-causes/syc-20352961 	[https://perma.cc/UKX8-GXK3].
Herniated discs are one of the common causes of stenosis. Id.

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discectomy (but not another fusion) at the L4-L5 level. Surgeon
also recommended that Torres “give strong consideration to
vocational retraining,” in light of the fact that his job at the
Company required “significant lifting and bending.” Surgeon
concluded that Torres’s injuries were potentially permanent, and
that Torres would be “[u]nable to return to work before . . .
[s]urgical [i]ntervention.”
¶9 	Meanwhile, on November 5, 2013, Torres filed a claim for
benefits with the Commission relating to the 2011 Accident. In
his claim he sought compensation for his medical expenses,
temporary total disability benefits, permanent total disability
benefits, and unpaid interest. A few months later, in February
2014, a physician hired by the Company (Company Expert)
examined 	Torres 	and 	reviewed 	his 	medical 	records. 	After
completing his review, Company Expert opined that the 2013
Accident had been a “flareup” of the low back condition caused
by 	the 	“industrial” 	2011 	Accident 	and 	that, 	“[a]bsent 	any
evidence 	to 	the 	contrary,” 	Torres’s 	increased 	pain 	could
“reasonably” be considered to have been caused by the demands
of 	his 	job. 	While 	Company 	Expert 	“deferred” 	an 	ultimate
decision 	on 	Torres’s 	work 	capacity 	until 	a 	later 	date, 	he
concluded that Torres was able to return to work, but that he
should be restricted to lifting twenty pounds on a regular basis
and thirty-five pounds occasionally. Later, in a follow-up report,
Company Expert concluded that the 2013 Accident had caused
only a “temporary exacerbation” of the “low back condition”
caused by the 2011 Accident. He further concluded that, because
Torres had “return[ed] to baseline level of impairment,” he had
become medically stable, did not need additional surgery, and
was 	“able 	to 	return 	to 	work” 	under 	the 	same 	restrictions
discussed in the earlier report.
¶10 	Based on Company Expert’s initial review, in March 2014
the Company sent an official job offer letter to Torres, in which it
claimed to be able to “accommodate” the work restrictions

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identified 	by 	Company 	Expert. 	The 	job 	described 	in 	the
letter would have been a “temporary position” with “shifts of
up 	to 	12 	hours 	per 	day,” 	but 	would 	have 	met 	Company
Expert’s restrictions of lifting no more than twenty pounds
regularly and thirty-five pounds occasionally. Torres did not
accept the offer, telling a Company representative that Surgeon
had ordered restrictions that would not allow him to work, at
least not under those conditions, until he underwent another
surgery.
¶11 	At an evidentiary hearing before the ALJ in July 2014,
Torres 	withdrew 	his 	claim 	for 	permanent 	total 	disability
benefits, but continued to press his other claims. The Company
resisted Torres’s claims on several grounds, asserting that the
2011 Accident had been compensable when it occurred but that
it was not the medical cause of Torres’s then-current symptoms,
and that Torres had been offered a light-duty work opportunity
but refused to take it. In September, the ALJ issued a written
ruling making certain interim findings of fact and conclusions of
law, describing the events as set forth above, but the ALJ did not
make a final decision on the merits. Instead, he referred the case
to a medical panel (the First Panel) because he perceived that
there were “conflicting medical opinions” about whether the
2013 Accident was a “temporary or permanent aggravation of
[Torres’s] permanent low back injury” from the 2011 Accident,
“what treatment [was] necessary, and whether or not [Torres
was] medically stable.” The first question the ALJ posed to the
First Panel was whether the 2013 aggravation of Torres’s low
back condition—which aggravation all medical professionals
agreed was an exacerbation (or “flareup”) of the injury caused
by the unquestionably industrial 2011 Accident—was temporary
or permanent. This question assumed that the flareup was
related to the 2011 Accident, because there were no “conflicting
medical opinions” on that point. Accordingly, the ALJ did not
ask the First Panel to opine on whether the 2013 Accident was
related to the 2011 Accident.

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¶12 	The 	First 	Panel 	was 	appointed 	in 	January 	2015, 	but
took seventeen months to issue its report—finally offering its
first set of opinions in June 2016—and only then after two
follow-up inquiries from the ALJ as to the status of the pending
report. In its initial report, the First Panel opined that Torres’s
then-current low back condition was neither a temporary nor a
permanent aggravation of the injuries sustained in the 2011
Accident but, instead, was “an unrelated low back injury caused
by” the 2013 Accident. Torres filed a timely objection to the First
Panel’s report, 	asserting 	that 	the 	First 	Panel 	had, 	“without
explanation,” 	“omit[ted] 	or 	ignore[d] 	key pieces of 	medical
information.”
¶13 	A few weeks after briefing was complete on Torres’s
objection, the ALJ asked the First Panel for further clarification
about “[w]hat effect, if any” it thought the 2011 Accident had
on 	the 	supposedly 	new 	injury 	that 	arose 	out 	of 	the 	2013
Accident. Seven months later, in April 2017, after receiving no
response from the First Panel, the ALJ asked the panel’s chair for
an update on the status of the follow-up inquiry. Over a month
later, the First Panel finally issued its follow-up report, therein
reiterating its view that Torres’s current symptoms stemmed
from “a new low back injury at the L4-L5 level not influenced by
[the 2011 Accident] at the L5-S1 level.” (Emphasis in original.) It
explained that its reasoning was based on the assumption that
Torres’s L5-S1 injury, in its view, had “reached full stability with
maximum medical improvement” by October 2012 following
several months of recovery after surgery. By this explanation,
the 	First 	Panel 	appears 	to 	have 	assumed 	that 	the 	2011
Accident involved only the L5-S1 level, and not the L4-L5 level;
however, as noted above, all other medical professionals had
previously agreed that the 2011 Accident involved both vertebral
levels.
¶14 	Torres 	timely 	objected 	to 	the 	First 	Panel’s 	follow-up
report, requesting that the ALJ make his own findings “due to

Graphic Packaging v. Labor Commission
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the length of time” it took for the First Panel to complete its
initial and follow-up reports. “In the alternative,” Torres asked
that “a new panel be assigned to review the medical aspects of
[his] case in its entirety.” In December 2017, after full briefing on
the objection, the ALJ appointed a chair for a new medical panel
(the 	Second 	Panel) 	and 	directed 	him 	to 	appoint 	the 	other
members of the panel. In a subsequent ruling, the ALJ stated that
“[i]t 	became 	necessary 	to 	utilize 	a 	new 	panel 	because 	the
previous 	panel 	members 	had 	retired 	and 	were 	no 	longer
available 	to 	provide 	clarification 	or 	answer 	the 	[ALJ’s]
questions.” But at the time he appointed the new panel, the ALJ
did not mention that the members of the First Panel had retired,
stating instead that he was appointing a new panel “[b]ecause
the [First Panel had] opined that there was a new injury that
occurred in 2013, and no other physician had such an opinion.”
The ALJ posed several questions to the Second Panel: whether
Torres’s 	then-current 	low 	back 	injury 	was 	a 	permanent 	or
temporary 	aggravation 	of 	injuries 	arising 	out 	of 	the 	2011
Accident; 	the 	exact 	date 	when 	the 	injuries 	from 	the 	2011
Accident had stabilized; the necessary medical care to treat
Torres’s condition in the future; and, if it determined that the
2013 Accident caused a “new injury,” the effect that the 2011
Accident had on said new injury.
¶15 	The Second Panel issued its report about six weeks later,
and opined that Torres’s then-present lower back condition was
“a permanent aggravation of his low back problems caused by
the [2011 Accident],” reasoning that it had been seven years
since 	the 	2011 	Accident 	and 	that 	Torres’s 	symptoms 	had
“continue[d] more or less unremitting[ly].” It also found that the
aggravation occurring from the 2013 Accident had stabilized by
September 2013. And on the fourth question, it indicated its
disagreement with the First Panel and opined that the injury
occurring from the 2013 Accident was “relatively mild and likely
represented only an aggravation of the initial injury” from the
2011 Accident.

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¶16 	Both parties objected to the Second Panel’s report, and in
response the ALJ directed three follow-up questions to the panel:
whether Torres, at the time the Company offered him the light-
duty position, “would . . . have been able to work in a full-time
position, 	standing 	up 	to 	12 	hours per 	day,” 	lifting 	twenty
pounds regularly and thirty-five pounds occasionally; whether
Torres’s condition could be expected to improve; and whether
consultation with a neuroradiologist (which consultation the ALJ
directed the Second Panel to undertake) would change any of
the 	Second 	Panel’s 	previous 	answers. 	The 	Second 	Panel
submitted a follow-up report a few weeks later, and indicated
that 	it 	had, 	at 	the 	ALJ’s 	direction, 	consulted 	with 	a
neuroradiologist. The Second Panel found that asking Torres to
work full-time “is reasonable with accommodations,” including
limiting his regular shifts to eight hours, limiting any lifting to
no more than thirty-five pounds, and allowing him to “alternate
positions frequently” so that he would not be required to either
stand or sit for prolonged periods. It also reiterated that Torres’s
“L4-L5 disc disease ha[d] been present and at least partially
responsible for [his] symptoms since the [2011 Accident].”
¶17 	The 	Company 	timely 	objected 	to 	the 	Second 	Panel’s
follow-up report, requesting that the ALJ instead “admit and
rely” on the First Panel’s reports. After considering the Second
Panel’s input and both parties’ briefing in connection with the
Company’s objection, the ALJ issued his final order in the case.
In addressing the Company’s objection to the Second Panel’s
conclusions, the ALJ noted that, due to retirement, the members
of the First Panel had been “unavailable to provide clarification”
about its “prior answers” to the ALJ’s questions, and in that
respect the First Panel’s report was “incomplete.” He also noted
that the Second Panel, but not the First Panel, had enjoyed the
“benefit of” having consulted with “a lumbar MRI specialist.”
Finally, the ALJ found that the medical evidence supported the
Second Panel’s findings because a “careful review” of both the
2011 and 2013 MRIs showed that the “L4-L5 disc herniation was

Graphic Packaging v. Labor Commission
20200210-CA 	11 	2021 UT App 82
present before the 2013 [Accident].” The ALJ also agreed with
the Second Panel that Torres “could have worked a light-duty
job,” but that Torres’s “refusal to perform light duty work was
not improper” because the position the Company offered would
have involved Torres regularly working twelve-hour shifts, and
would have only been a “temporary” position. Accordingly, the
ALJ awarded Torres temporary total disability compensation
dating back to March 2014.6
¶18 	The Company petitioned the Commission for review of
the ALJ’s decision, asserting that the ALJ had “continued to
needlessly refer the claim back for . . . new medical panels . . .
until a favorable medical panel result for [Torres] was finally
received.” It also took issue with the ALJ’s findings on the light-
duty work opportunity. The Commission found these arguments
unpersuasive, and affirmed the ALJ’s order. As to the medical
panels, the Commission found that the First Panel’s reasoning
was “incomplete” and did not sufficiently address the injuries to
the L4-L5 level of Torres’s spine, which were apparent from the
MRIs and physical exams “well before the 2013 [Accident].” And
the Commission found the Second Panel’s conclusions to be fully
“supported by the evidence in the record” and “the product of
impartial, collegial, and expert review of . . . Torres’s relevant
medical 	history.” 	As 	to 	the 	light-duty 	assignment, 	the
Commission agreed that the Company had not “made suitable
light-duty work available” because, although the light-duty offer
complied with the lifting restrictions given by Company Expert,
the job would have involved regular twelve-hour shifts, which
the Commission concluded made it reasonable for Torres to
reject 	the 	offer. 	Accordingly, 	the 	Commission 	affirmed 	the
award of temporary total disability benefits to Torres.
6. Prior to the initial July 2014 hearing, both parties stipulated
that “temporary total disability compensation ha[d] been paid
from August 13, 2013 through March 24, 2014.”

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ISSUES AND STANDARDS OF REVIEW
¶19 	The 	Company 	now 	seeks 	judicial 	review 	of 	the
Commission’s 	decision, 	and 	identifies 	two 	issues 	for 	our
consideration. First, the Company argues that it was improper
for the ALJ to appoint the Second Panel and, relatedly, that the
Commission erred by affirming the ALJ’s decision to appoint the
Second 	Panel. 	The 	parties 	present 	diverging 	views 	on 	the
appropriate standard of review to be applied in this situation.
Torres contends that the Commission’s decision to affirm the
ALJ’s appointment of a second medical panel presents a mixed
question of law and fact that “is highly fact intensive and should
be entitled to a high degree of deference.” The Company, on the
other hand, asserts that we should review this decision non-
deferentially as a mixed question that is more law-like than fact-
like, contending that the facts underlying the appointment of the
medical panels were not in dispute, and that the decision to
appoint the Second Panel was driven by the legal effect of the
undisputed facts and by interpretation of the relevant statute.
¶20 	In our view, neither side has it exactly right, and both
appear to conflate deference with discretion. See Murray v. Utah
Labor Comm’n, 2013 UT 38, ¶ 33, 308 P.3d 461 (recognizing that
“‘discretion’ and ‘deference’ are distinct concepts” in appellate
review 	of 	an 	administrative 	tribunal’s 	decision). 	Whereas
deference is accorded to a tribunal’s decision on certain mixed
questions that are more fact-like than law-like, and “reflects the
idea that we, as an appellate court, are not always in the best
position to say what that ‘right’ answer is,” discretion must be
“explicitly delegated” to the agency by the legislature, and
“involves a question with a range of ‘acceptable’ answers” from
which the tribunal may choose. See id. ¶¶ 27–30, 33, 36–39.
¶21 	We 	generally 	review 	the 	Commission’s 	decisions
regarding appointment of medical panels for abuse of discretion,
based on instructive language in the relevant statute. See, e.g.,

Graphic Packaging v. Labor Commission
20200210-CA 	13 	2021 UT App 82
Foye v. Labor Comm'n, 2018 UT App 124, ¶ 20, 428 P.3d 26 (noting
that the governing statute “provides that an administrative law
judge generally has discretion to appoint a medical panel”);
Ernest Health, Inc. v. Labor Comm’n, 2016 UT App 48, ¶ 10, 369
P.3d 462 (“The decision to refer medical aspects of a disability
compensation case to a medical panel is generally a matter of
discretion.”). 	The 	governing 	statute 	provides 	that 	the
Commission 	“may 	refer 	the 	medical 	aspects” 	of 	any 	case
involving a claim for “disability by accident” “to a medical panel
appointed by an [ALJ].” See Utah Code Ann. § 34A-2-601(1)(a)
(LexisNexis 2019) (emphasis added). The statute’s use of the
word “may” is significant, and suggests that the legislature has
granted 	the 	Commission 	discretionary 	power 	over 	the
appointment of medical panels. See Mota v. Mota, 2016 UT App
201, ¶ 6, 382 P.3d 1080 (“[A] statute’s use of the word ‘may’
indicates a [lower tribunal’s] discretionary power, the exercise of
which we review for an abuse of discretion.”). Thus, in light of
the discretion afforded the Commission by statute, we review
the Commission’s decisions regarding appointment of medical
panels for abuse of discretion. See Utah Code Ann. § 63G-4-
403(4)(h)(i) 	(LexisNexis 	2019) 	(providing 	that, 	where
“discretion” has been “delegated to the agency by statute,” an
appellate court “shall grant relief only if . . . the agency action is
. . . an abuse of [that] discretion”); see also Murray, 2013 UT 38,
¶ 23 (stating that, where the agency is afforded discretion under
statute, 	“we 	properly 	review 	the 	action 	for 	an 	‘abuse 	of
discretion,’ as required by the plain language of section 63G-4-
403(4)(h)(i)”). “[A] discretionary decision involves a question
with a range of ‘acceptable’ answers, some better than others,
and the agency . . . is free to choose from among this range
without regard to what an appellate court thinks is the ‘best’
answer.” 	Murray, 	2013 	UT 	38, 	¶ 	30. 	When 	applying 	this
standard, “we will reverse only if there is no reasonable basis for
the decision.” See Johnston v. Labor Comm’n, 2013 UT App 179,
¶ 15, 307 P.3d 615 (quotation simplified).

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20200210-CA 	14 	2021 UT App 82
¶22 	Second, 	the 	Company 	challenges 	the 	Commission’s
finding that Torres “reasonably refused” an offer for light-duty
work. Both parties agree that this was “a determination of fact,”
which 	we 	will 	not disturb 	so 	long 	as it is “supported 	by
substantial evidence when viewed in light of the whole record.”
Utah Code Ann. § 63G-4-403(4)(g); accord Provo City v. Utah Labor
Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242. “A decision is supported
by substantial evidence if there is a quantum and quality of
relevant evidence that is adequate to convince a reasonable mind
to support a conclusion.” Provo City, 2015 UT 32, ¶ 8 (quotation
simplified). “In conducting a substantial evidence review, we do
not 	reweigh 	the 	evidence 	and 	independently 	choose 	which
inferences we find to be the most reasonable.” Id. (quotation
simplified). “Instead, we defer to an administrative agency’s
findings because when reasonably conflicting views arise, it is
the agency’s province to draw inferences and resolve these
conflicts.” Id. (quotation simplified).7
7. The Company also contends that it has presented a third issue
for our review, asserting that the Commission erred by awarding
Torres benefits for injuries from the 2013 Accident even though
Torres never filed an application for a hearing arising out of that
incident. But the Commission did not award Torres benefits for
any injuries arising out of the 2013 Accident alone, except insofar
as 	they 	were 	related 	to 	the 	2011 	Accident; 	rather, 	the
Commission found that the injuries Torres sustained following
the 2013 Accident were caused by the 2011 Accident, and the
Company—other than taking issue with the appointment of the
Second Panel—does not directly challenge this finding. At one
point in its brief, the Company does argue that the Second
Panel’s conclusions are “logically unsound and cannot be relied
upon as evidence,” but it stops short of fully developing this
argument, or even citing the “substantial evidence” standard we
apply to such findings. See Utah Code Ann. § 63G-4-403(4)(g)
(continued…)

Graphic Packaging v. Labor Commission
20200210-CA 	15 	2021 UT App 82
ANALYSIS
I
¶23 	First, the Company challenges, on several grounds, the
Commission’s decision affirming the ALJ’s appointment of the
Second Panel. We find the Company’s arguments unpersuasive,
and discern no abuse of discretion in the appointment of the
Second Panel.
¶24 	The Company first argues that the governing statute
“does not authorize” the appointment of a new medical panel
after 	one 	has 	already 	been 	appointed, 	and 	that 	“the 	ALJ
erroneously interpreted the plain language” of the statute in
concluding otherwise. (Quotation simplified.) As noted above,
the statute at issue states that the Commission “may refer the
medical aspects of a case” involving “disability by accident” to
“a medical panel appointed by an [ALJ].” Utah Code Ann.
§ 34A-2-601(1)(a). 	We 	acknowledge 	the 	statute’s 	use 	of
(…continued)
(LexisNexis 	2019). 	We 	therefore 	consider 	any 	“substantial
evidence” 	challenge 	to 	the 	substance 	of 	the 	Commission’s
ultimate determination to be inadequately briefed, see State v.
Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770 (“Briefs must contain
reasoned analysis based upon relevant legal authority. An issue
is inadequately briefed when the overall analysis of the issue is
so lacking as to shift the burden of research and argument
to 	the 	reviewing 	court.” 	(quotation 	simplified)), 	and 	likely
unpersuasive in any event, see Benson v. Utah Labor Comm’n, 2018
UT App 228, ¶ 8, 437 P.3d 1253 (per curiam) (“A medical panel’s
report alone may provide substantial evidence to support the
Labor 	Commission’s 	determination 	of 	medical 	causation.”).
Accordingly, we need not further discuss this putative third
issue.

Graphic Packaging v. Labor Commission
20200210-CA 	16 	2021 UT App 82
the 	indefinite 	article 	in 	referring 	to 	“a 	medical 	panel.” 	See
id. 	(emphasis 	added). 	But 	this 	article 	does 	not
necessarily 	connote 	a 	restriction 	limiting 	the 	Commission
to appointment of only one medical panel. The indefinite article
“a” can mean “any,” or can be “used as a function word before a
mass noun to denote a particular type or instance.” A, Merriam-
Webster, https://www.merriam-webster.com/dictionary/a [https:
//perma.cc/J2NL-P8SW]; see also Utah Code Ann. § 68-3-12(1)(b)
(LexisNexis 2019) (stating that, regarding “the construction of a
statute in the Utah Code,” “[t]he singular includes the plural,
and the plural includes the singular”). We do not read the statute
as restrictively as the Company does, and we do not discern in
its text a command that forbids appointment of more than one
medical panel in a given case. To the contrary, the best reading
of the statute, and the one that harmonizes the entire subsection,
is the one giving the Commission discretion regarding medical
panel 	appointments, 	including 	the 	discretion 	to 	decline 	to
appoint one, as well as the discretion to appoint more than one
panel if necessary. See Utah Code Ann. § 34A-2-601(1)(a) (stating
that the Commission “may refer the medical aspects of a case . . .
to a medical panel” (emphasis added)).8
8. The Commission’s discretion, as set forth in this statute, may
be 	constrained 	by 	administrative 	rule, 	which 	requires 	the
Commission to appoint a medical panel in certain circumstances.
See Brown & Root Indus. Service v. Industrial Comm’n, 947 P.2d 671,
677 (Utah 1997) (stating that “the Commission has discretion to
refer a case to a medical panel,” but noting that this “discretion
is limited by its own administrative rule,” which “requires the
ALJ to submit the case to a medical panel” in certain situations,
including cases where there are “conflicting medical reports”). In
this case, neither party contends that this administrative rule,
now codified as rule R602-2-2(A) of the Utah Administrative
Code, affects the outcome of this case, and both parties agree
(continued…)

Graphic Packaging v. Labor Commission
20200210-CA 	17 	2021 UT App 82
¶25 	Second, the Company argues that appointing “multiple
panels [to] review the same case confuses the purpose of the
medical panel,” correctly pointing out that the Commission is
the final decisionmaker and that medical panels are designed
only “to assist” the ALJ and the Commission “in deciding
whether medical cause has been proven.” (Quoting Price River
Coal Co. v. Industrial Comm’n, 731 P.2d 1079, 1084 (Utah 1986).) In
essence, the Company asserts that the ALJ and the Commission
treated the medical panel as a decisionmaker, rather than as an
advisory body, and appointed a new panel merely because the
ALJ did not like the First Panel’s conclusions. We disagree with
the Company’s interpretation of events. We see nothing in the
record indicating that the ALJ or the Commission viewed either
medical panel as a final decisionmaker, or that the ALJ or the
Commission misunderstood the role medical panels play in
proceedings before the Commission. To the contrary, the record
includes ample indication that the ALJ correctly understood the
advisory role of the medical panels; indeed, the ALJ asked both
panels to weigh in on medical issues upon which the other
experts’ 	conclusions 	conflicted, 	and 	asked 	the 	First 	Panel
clarifying questions about the conclusions set forth in its initial
report. 	In 	the 	end, 	we 	do 	not 	agree 	with 	the 	Company’s
argument that the ALJ misperceived the scope of the medical
panel’s assignment.
¶26 	Third, the Company contends that, where an ALJ is
unpersuaded by the medical panel’s conclusions, the ALJ should
just make contrary findings rather than appointing a new panel.
That course of action is certainly an option for ALJs who are
unpersuaded by the conclusions reached by a medical panel. See
(…continued)
that this case did involve conflicting medical opinions (at least
on certain issues) and therefore should have been referred to at
least one medical panel.

Graphic Packaging v. Labor Commission
20200210-CA 	18 	2021 UT App 82
Ramos v. Cobblestone Centre, 2020 UT 55, ¶ 31, 472 P.3d 910
(stating that ALJs “retain[] the discretion to reject the medical
panel’s recommendation”). But an ALJ may also determine,
within its discretion in appropriate cases, to appoint a second
medical panel, see supra ¶ 24, and in our view this was one of
those cases. Here, the ALJ did not appoint the Second Panel
merely because the First Panel’s “opinion differ[ed] from those
in the record,” as the Company alleges. To the contrary, the ALJ
had good reason to have been frustrated with the First Panel: it
took an unreasonably long amount of time to do its work, it
appeared to not understand that the 2011 Accident had affected
Torres at L4-L5 as well as at L5-S1, and when it finally submitted
its report it ended up answering at least one question (whether
the 2013 Accident was related to the 2011 Accident) that was not
posed and on which there had previously been no conflict in the
medical opinions. See Utah Admin. Code R602-2-2(A)(1) (setting
forth 	guidelines 	indicating 	that 	medical 	panels 	should 	be
utilized “where one or more significant medical issues” are
involved in the case, including situations where there exist
“[c]onflicting 	medical 	opinions 	related 	to 	causation 	of 	the
injury”).
¶27 	Moreover, although the ALJ made no mention of the First
Panel 	members’ 	apparent 	retirements 	in 	his 	memorandum
appointing the Second Panel, in his final order the ALJ noted
that “[i]t became necessary to utilize a new panel because the
previous 	panel 	members 	had 	retired 	and 	were 	no 	longer
available 	to 	provide 	clarification 	or 	answer 	[the 	ALJ’s]
questions.” 	The 	Company 	has 	not 	disputed 	the 	ALJ’s
representation that the members of the First Panel had retired
from medical practice and were unavailable to answer further
questions or provide clarification, either in writing or at a
subsequent hearing. These facts, if true, could also serve as
sufficient justification for appointment of a new panel. See Utah
Code Ann. § 34A-2-601(2)(f)(ii)–(iii) (allowing a party to request
that 	the 	medical 	panel 	chair 	appear 	at 	a 	hearing 	“for

Graphic Packaging v. Labor Commission
20200210-CA 	19 	2021 UT App 82
examination and cross-examination,” and allowing the ALJ to
order that other panel members be present at said hearing “[f]or
good cause shown”).
¶28 	In sum, we see no abuse of discretion in the appointment
of the Second Panel, and reject all of the Company’s arguments
to 	the 	contrary. 	We 	therefore 	decline 	to 	disturb 	the
Commission’s decision affirming the appointment of the Second
Panel.
II
¶29 	The 	Company 	next 	challenges, 	as 	unsupported 	by
substantial 	evidence, 	the 	Commission’s 	determination 	that
Torres reasonably refused a light-duty work offer. We reject this
challenge, because there exists sufficient evidence in the record
to support the Commission’s finding.
¶30 	Utah workers’ compensation law provides that, “[i]f a
light duty medical release is obtained before the employee
reaches a fixed state of recovery and no light duty employment
is available to the employee from the employer, temporary
disability benefits shall continue to be paid.” Utah Code Ann.
§ 34A-2-410(2) (LexisNexis 2019). But if a worker is cleared for
light-duty 	work 	and 	the 	employer 	makes 	such 	a 	position
available, that worker may not “choose[] for some personal
reason not to work” and still maintain eligibility for temporary
workers’ compensation benefits. See Stampin’ Up, Inc. v. Labor
Comm’n, 2011 UT App 147, ¶¶ 9–10, 256 P.3d 250.
¶31 	The Company correctly points out that, in early 2014,
Company Expert had cleared Torres for light-duty work as long
as Torres was restricted to lifting twenty pounds on a regular
basis and thirty-five pounds occasionally, and that in March
2014 	the 	Company 	offered 	Torres 	a 	temporary 	light-duty
position that accommodated the lifting restrictions identified by
Company 	Expert. 	The 	light-duty 	position 	offered, 	however,

Graphic Packaging v. Labor Commission
20200210-CA 	20 	2021 UT App 82
would have involved “shift[s] of up to 12 hours per day.” And
the experts’ recommendations were not unanimous: as noted
above, Surgeon had initially released Torres to return to work in
September 2013 at “modified duty,” meaning that he could work
only four hours a day and lift no more than ten pounds, but a
few months later opined that Torres’s injuries were potentially
permanent, and that Torres would be “[u]nable to return to
work” at least until additional “[s]urgical [i]ntervention” had
been attempted.
¶32 	Against 	this 	backdrop 	of 	conflicting 	medical 	advice,
Torres 	declined 	the 	Company’s 	offer 	of 	light-duty 	work,
specifically citing Surgeon’s recommendations as the reason. The
question posed to the ALJ and the Commission was whether
Torres’s refusal to accept the Company’s light-duty position was
reasonable under the circumstances. The ALJ found that it was,
but relied in part on the Second Panel’s conclusions, issued years
after Torres had already refused the Company’s light-duty work
offer. In 2018, the Second Panel specifically concluded that
Torres could return to work as long as accommodations were
made, including limiting his shifts to eight hours, limiting any
lifting to no more than thirty-five pounds, and allowing him to
“alternate positions frequently” so that he would not be required
to either stand or sit for prolonged periods. The ALJ noted that
the offered position would have required Torres to work twelve-
hour shifts, and largely on that basis found that Torres’s refusal
to 	accept 	the 	light-duty 	position 	was 	“not 	improper.” 	The
Commission 	affirmed 	that 	finding, 	also 	expressing 	concern
about the potential twelve-hour shifts and ultimately concluding
that Torres “did not unreasonably refuse [the Company’s] offer
of light-duty work.”
¶33 	The 	Company 	assails 	the 	Commission’s 	finding,
specifically taking issue with the Commission’s and the ALJ’s
reliance on the Second Panel’s report, which had not yet been
issued when Torres refused the light-duty work offer. We take

Graphic Packaging v. Labor Commission
20200210-CA 	21 	2021 UT App 82
the Company’s point, and emphasize that the reasonableness of
Torres’s decision should be analyzed in light of the information
Torres had at his disposal at the time he declined the light-duty
work offer. Cf. Sawyer v. Department of Workforce Services, 2015 UT
33, ¶¶ 29–30, 345 P.3d 1253 (noting that analysis of whether an
employee had “good cause to quit” a job must be undertaken
based “on what the claimant in fact knew and reasonably should
have known” when making the decision (quotation simplified)).
¶34 	But 	even 	if 	we 	do 	not 	consider 	the 	Second 	Panel’s
conclusions, there remains substantial evidence to support the
Commission’s finding that Torres’s decision was reasonable. In
particular, Surgeon’s recommendation that Torres not return to
work until after an additional surgical procedure had been
attempted 	is, 	by 	itself, 	sufficient 	evidence 	to 	support 	the
Commission’s 	finding. 	Torres 	specifically 	cited 	this 	medical
advice as the reason why he declined the Company’s offer, and
following the advice of one’s treating physician can certainly be
considered reasonable. Furthermore, the Company intended for
the offered position to be only temporary, meaning that there
would be no guarantee that any light-duty position would be
available after Torres underwent a second surgery—something
that 	also 	factored 	into 	the 	ALJ’s 	decision 	assessing 	the
reasonableness of Torres’s refusal. “Substantial evidence is more
than a mere scintilla of evidence though something less than the
weight of the evidence, and the substantial evidence test is met
when a reasonable mind might accept as adequate the evidence
supporting the decision,” see Wright v. Labor Comm’n, 2021 UT
App 43, ¶ 26 (quotation simplified), petition for cert. filed, June 16,
2021 (No. 20210419), and a reasonable mind could certainly view
these rationales as adequately supporting Torres’s refusal.
¶35 	Thus, we conclude that the Commission’s determination
that Torres reasonably refused the Company’s light-duty work
offer was based on substantial evidence, and on that basis we
decline to disturb it. Accordingly, Torres’s refusal cannot serve

Graphic Packaging v. Labor Commission
20200210-CA 	22 	2021 UT App 82
as grounds for the Company to decline to pay him temporary
workers’ compensation benefits following the refusal.
CONCLUSION
¶36 	The Commission did not abuse its statutorily conferred
discretion by referring Torres’s case to the Second Panel after the
First Panel took an inordinately long time to answer the ALJ’s
questions 	and 	was 	ultimately 	not 	able 	to 	respond, 	to 	the
satisfaction of the ALJ, before its members retired from medical
practice. 	And 	the 	Commission’s 	determination 	that 	Torres
reasonably refused the Company’s light-duty work offer was
supported by substantial evidence. Accordingly, we decline to
disturb the Commission’s award of temporary total disability
benefits to Torres.