Swift Transportation v. Labor Commission

2014 UT App 104
_________________________________________________________
THE U TAH COURT OF A PPEALS
SWIFT T RANSPORTATION AND A CE A MERICAN INSURANCE ,
Petitioners,
v.
LABOR C OMMISSION AND P AUL MCC LENDON,
Respondents.
Memorandum Decision
No. 20130507‐CA
Filed May 8, 2014
Original Proceeding in this Court
Brad J. Miller, Attorney for Petitioners
Jaceson R. Maughan, Attorney for Respondent
Labor Commission
Gary E. Atkin and Marsha S. Atkin, Attorneys for
Respondent Paul McClendon
J UDGE MICHELE M. C HRISTIANSEN authored this Memorandum
Decision, in which J UDGES G REGORY K. ORME and J OHN A.
P EARCE concurred.
CHRISTIANSEN, Judge:
¶1 	Swift 	Transportation 	and 	its 	insurer, 	Ace 	American
Insurance, petition for judicial review of a Labor Commission
decision awarding permanent total disability benefits to Paul
McClendon. Because Swift has not shown that the Commission
erred in determining that McClendon is permanently and totally
disabled, we decline to disturb the Commission’s order.

Swift Transportation v. Labor Commission
¶2 	McClendon was injured on October 4, 2008, while inspecting
a refrigerated truck container.1 To check the refrigerant level,
McClendon had climbed some six feet off the ground on a ladder
to access the refrigeration unit located on the outside of the
container. As McClendon was checking the sight glass that
indicated the refrigerant level, the glass blew out, and he was hit in
the face with a spray of refrigerant and oil. The force of the blowout
knocked McClendon to the ground, where he landed on a pile of
metal.
¶3 	McClendon was treated that same day for exposure to the
refrigerant and injuries from his fall. He was seen three days later
by his primary‐care physician, complaining of headaches, memory
loss, poor balance, neck stiffness, numbness in his fingers, and pain
in his left knee. He was diagnosed with a concussion and further
treated for exposure to the refrigerant. McClendon attempted to
return to work shortly after the accident, but he suffered a blackout
while driving and was released from work by his physician.
McClendon continued to seek treatment for both his physical
injuries and his cognitive difficulties.
¶4 	In July 2009, McClendon underwent a medical evaluation at
Swift’s request. He was diagnosed with headaches related to the
industrial accident and chronic cervical spine pain. The evaluating
doctor found no evidence of cognitive dysfunction and did not
attribute McClendon’s other conditions to the industrial accident.
The doctor deemed McClendon medically stable, and McClendon
returned 	to 	light‐duty 	work. 	However, 	he 	had 	difficulty
1 In reviewing the decision of the Commission, we view
the facts in the light most favorable to the Commission’s find‐
ings. Entwistle Co. v. Wilkins, 626 P.2d 495, 498 (Utah 1981). Due
to McClendon’s preexisting conditions and the extensive medical
records presented in the record, we discuss only those injuries
and medical diagnoses necessary to understand the issues pre‐
sented.
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Swift Transportation v. Labor Commission
performing his work, including working on the computer and
completing paperwork. On September 9, 2009, Swift terminated
McClendon because he could no longer perform his job.
¶5 	After his termination, McClendon filed an application with
the 	Commission 	for 	permanent 	total 	disability 	benefits.
McClendon’s primary‐care physician performed an evaluation of
McClendon’s mental residual functional capacity. That evaluation
identified 	numerous 	cognitive 	difficulties, 	including 	severe
limitations on McClendon’s ability to carry out instructions,
maintain attention and concentration for extended periods, and
travel 	in 	unfamiliar 	places. 	Another 	doctor 	performed 	an
assessment of McClendon’s physical residual functional capacity.
Based on that assessment, the doctor recommended physical
restrictions, including not frequently lifting more than ten pounds
and not sitting or standing more than six hours in a workday.
McClendon was given a 10% whole person impairment rating as
a result of his cognitive difficulties and a 5% whole person
impairment rating as a result of his physical injuries. McClendon’s
primary‐care physician opined that McClendon could not return to
work given his physical restrictions and cognitive difficulties. Swift
also hired a doctor to perform a medical evaluation of McClendon.
That doctor attributed the majority of McClendon’s difficulties to
preexisting 	conditions, 	questioned 	whether 	McClendon 	had
experienced 	an 	industrial 	accident 	at 	all, 	and 	opined 	that
McClendon was capable of returning to work subject to some
lifting restrictions.
¶6 	Because 	of 	the 	conflicting 	medical 	evidence, 	the
administrative law judge assigned to consider the claim (the ALJ)
referred the medical issues to a medical panel. After examining
McClendon and reviewing his medical history, the medical panel
opined that McClendon had preexisting cognitive difficulties
unrelated to the accident, but that his “problems with perceptual
organization and intermittent lapses in attention are likely to have
been exacerbated on a permanent basis by the industrial injury.”
The panel also opined that the accident may have permanently
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Swift Transportation v. Labor Commission
aggravated a preexisting cervical spine condition and that there
was therefore a demonstrable causal connection between the
accident and McClendon’s cervical spine condition and left
extremity numbness and pain. The panel ultimately attributed to
the accident a 3% whole person impairment due to McClendon’s
cognitive impairment and a 3% whole person impairment due to
his cervical condition. After receiving the medical panel’s report,
the ALJ found that McClendon was permanently and totally
disabled as a result of the accident and ordered Swift to pay
benefits to McClendon. Swift moved the Commission for review of
the ALJ’s order. The Commission adopted the ALJ’s findings of fact
and 	affirmed 	the 	ALJ’s 	determination 	that 	McClendon 	was
permanently and totally disabled. Swift now seeks judicial review
of that order.
¶7 	To 	establish 	entitlement 	to 	permanent 	total 	disability
benefits based on an industrial accident, an employee must
demonstrate that “the employee sustained a significant impairment
or combination of impairments as a result of the industrial
accident,” that the employee now has a permanent total disability,
and that the industrial accident is the direct cause of the permanent
total disability. Utah Code Ann. § 34A‐2‐413(1)(b) (LexisNexis
2011). And to show the existence of a permanent total disability, the
employee must prove (1) that the employee is not gainfully
employed; (2) that the employee has impairments that limit the
employee’s ability to do basic work activities; (3) that industrially
or occupationally caused impairments prevent the employee from
performing the “essential functions” of the work for which the
employee was qualified before the accident; and (4) that the
employee cannot perform “other work reasonably available.” Id.
§ 34A‐2‐413(1)(c). Swift challenges only the Commission’s findings
that McClendon’s impairments limit his ability to perform basic
work activities and that his work‐related impairments prevent him
from performing the essential functions of the work he performed
before the accident.
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Swift Transportation v. Labor Commission
¶8 	We will not disturb the Commission’s factual findings
unless the party challenging the findings demonstrates that a
finding is not supported by substantial evidence. See Murray v.
Labor Comm’n, 2013 UT 38, ¶ 19, 308 P.3d 461; see also Utah Code
Ann. § 63G‐4‐403(4)(g) (LexisNexis 2011) (permitting an appellate
court to grant relief if an agency finding of fact “is not supported
by 	substantial 	evidence”). 	To 	successfully 	challenge 	the
Commission’s factual findings, a party must generally marshal all
record evidence that supports the challenged finding and then
demonstrate how that evidence is inadequate to support the
finding. See Martinez v. Media‐Paymaster Plus/Church of Jesus Christ
of Latter‐day Saints, 2007 UT 42, ¶ 17, 164 P.3d 384. Swift has not
done so. Notably absent from Swift’s briefing is any mention of the
examinations performed by McClendon’s primary‐care physician
or other doctors indicating that McClendon experienced physical
and cognitive impairment. Rather, Swift mentions only the results
of its own evaluation of McClendon and those parts of the medical
panel’s 	report 	that 	support 	its 	position. 	Swift 	has 	not
acknowledged 	and 	rebutted 	the 	evidence 	supporting 	the
Commission’s findings and has failed to demonstrate how that
evidence is inadequate.
¶9 	Instead, 	Swift’s 	argument 	to 	this 	court 	is 	that 	the
Commission improperly substituted its opinion of the medical
evidence for the report of the medical panel, which Swift asserts
clearly supported a finding that McClendon was not permanently
and totally disabled. We first note our disagreement with Swift’s
contention that the Commission’s finding is “directly inconsistent”
with the medical panel’s report. The panel recognized that
McClendon’s 	cervical 	spine 	condition 	and 	certain 	cognitive
difficulties had been permanently aggravated by the accident. And
while the panel opined that, standing alone, the residual effects of
McClendon’s 	concussion 	would 	result 	in 	“very 	few 	work
restrictions,” it did not opine that such restrictions would not limit
McClendon’s ability to perform basic or essential work functions.
Thus, the panel report itself did not preclude a finding that
McClendon was permanently and totally disabled.
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Swift Transportation v. Labor Commission
¶10 	Moreover, 	even 	if 	the 	Commission’s 	findings 	were
inconsistent with the medical panel’s report, the Commission, not
the medical panel, is the ultimate fact finder. See Johnston v. Labor
Comm’n, 2013 UT App 179, ¶ 23, 307 P.3d 615. Accordingly, the
Commission is not bound by the opinions contained in the medical
panel’s report and may weigh the report against the other evidence
before it in arriving at its findings.2 Id. Even if we were to conclude
that the medical panel’s report did not support a finding that
McClendon was permanently and totally disabled, there was
sufficient other evidence before the Commission on which to base
such a finding. At its core, Swift’s argument is simply an invitation
for this court to reweigh the evidence presented to the Commission
and “find that [McClendon] is not permanently and totally
disabled.” We will not do so. See Migliaccio v. Labor Comm’n, 2013
UT App 51, ¶ 7, 298 P.3d 676 (“It is not the role of this court to
reweigh the evidence and substitute our conclusion for that of the
Commission.” (citation and internal quotation marks omitted)).
¶11 	Swift has failed to show that the Commission’s factual
findings are not supported by substantial evidence or to identify
any other error in the Commission’s determination that McClendon
is permanently and totally disabled. Accordingly, we decline to
disturb the Commission’s order.
2 We find ourselves somewhat perplexed by Swift’s argu‐
ment that it is improper for the Commission to disregard a
medical panel’s report. In the proceedings before the ALJ, Swift
objected to the medical panel’s report. Swift argued not only that
the ALJ could have disregarded the medical panel’s report, but
that the ALJ should have disregarded the medical panel’s report.
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