369 P.3d 462
Utah Ct. App.2016Background
- In October 2009 Martie Breivik slipped at work, injuring her right hand; MRI showed ligament damage and later she was diagnosed with complex regional pain syndrome, anxiety, and depression related to the fall.
- Breivik worked light duty until October 31, 2011, then was fired for lacking a full work release; she applied for permanent total disability benefits in August 2013.
- An ALJ issued a preliminary finding of permanent total disability on May 28, 2014; the Labor Commission affirmed.
- Employer Ernest Health (with insurer North River) sought review, arguing the Commission should have: (1) reopened the record to admit post-hearing surveillance video and a supplemental medical report; (2) remanded for referral to an impartial medical panel due to alleged conflicting medical opinions; and (3) required more specific findings to enable preparation of a re-employment plan.
- The Commission declined to consider the late-submitted surveillance and supplemental report as untimely and found no mandatory medical-panel referral was required because the medical opinions did not present an actual conflict.
- The appellate court affirmed the Commission, holding the exclusion of late evidence and the refusal to refer to a medical panel were within the Commission’s discretion and that Ernest Health failed to show the ALJ’s findings were too nonspecific to allow a re-employment plan.
Issues
| Issue | Plaintiff's Argument (Ernest Health) | Defendant's Argument (Breivik/Labor Comm'n) | Held |
|---|---|---|---|
| Whether the Commission abused discretion by refusing to reopen the evidentiary record to admit post‑hearing surveillance video and a supplemental medical report | Video and report are outcome‑determinative and show Breivik’s testimony was untruthful; evidence should be admitted to avoid a decision unsupported by substantial evidence | Evidence was obtained after the hearing without adequate explanation for delay; Commission rules close the record at hearing absent leave; exclusion was proper | Affirmed: Commission did not abuse discretion in excluding untimely evidence because Ernest Health failed to explain why it could not obtain it earlier |
| Whether the Commission erred by not referring medical issues to an impartial medical panel due to alleged conflicting medical opinions | Treating physician and employer’s IME conflict on employability; medical panel referral is mandatory when there is a medical controversy shown by conflicting reports | The opinions do not present an actual conflict; later supplemental IME based on excluded video cannot be considered; referral discretionary and not required here | Affirmed: No mandatory referral — Commission’s factual finding of no significant conflict is supported by substantial evidence |
| Whether the ALJ’s findings were insufficiently specific to permit employer to prepare a lawful re‑employment plan | Findings lack specific work restrictions or clear statement of abilities, prejudicing employer’s vocational planning | ALJ made detailed findings about pain, specific functional limitations, cognitive and emotional issues; employer failed to identify legal authority or show practical prejudice | Affirmed: Ernest Health failed to develop argument or show that findings materially impeded preparation of a re‑employment plan |
Key Cases Cited
- Ameritemps, Inc. v. Utah Labor Comm’n, 152 P.3d 298 (Utah 2007) (Labor Commission finding of permanent total disability constitutes final agency action for appellate review)
- Brown & Root Indus. Serv. v. Industrial Comm’n of Utah, 947 P.2d 671 (Utah 1997) (referral to medical panel mandatory only where there is a medical controversy evidenced by conflicting medical reports)
- Thomas v. Color Country Mgmt., 84 P.3d 1201 (Utah 2004) (statutory two‑step process for permanent total disability findings and reemployment plan process)
- Hurley v. Board of Review of the Indus. Comm’n, 767 P.2d 524 (Utah 1988) (agency factual findings reviewed for substantial evidence)