Heaton v. Second Injury Fund

HEATON, Sharon L. Plaintiff Petitioner, (EMPLOY-

SECOND INJURY FUND FUND),

ER’S REINSURANCE Respondent.

Defendant and

No. 880335.

Supreme Court of Utah. Black,

James R. Wendy Moseley, B. Salt City, Lake plaintiff petitioner. Boorman, Erie City, Salt Lake for defen- dant respondent.

STEWART, Justice: granted We a writ of certiorari to review decision the court of affirmed a decision of the Industrial Com- Fund, mission. Heaton v. (Utah Ct.App.1988). We re- part verse in part. and affirm in petitioner, On October Shar- on L. thirty-nine-year-old male, when he fell carrying while one-hundred-pound two drilling sacks of mud in the employment course of his Boyles Drilling Brothers Co. Heaton’s in- jury diagnosed as severe cervical strain, head, neck, causing pain back, in his arms. November Heaton un- surgery, August being judicata pur- and the issue res for neck derwent poses appear of future review. It would surgery. injuries His he were so had chest surgery to Commission that future is never he returned to work. severe that anticipated, although may and a decision permanent for applied total dis- Heaton have this time been rendered at as to in June ability 1978. He was re- benefits undertaken, surgery whether will be we judge administrative law ferred Keith it to withhold appropriate believe a final panel to a medical for Sohm evaluation. final pending determination a decision as panel The found that Heaton was 67 completion surgery and/or the of said (impaired) percent cent and disabled that 60 surgery. a In the interim there is consid- injury, to the industrial attributable compensation erable amount of 7 percent preex- was attributable to a paid applicant. to the The Order of the isting condition. The medical also Judge appears Administrative Law to or- found that Heaton had “been dis- disability up temporary der total to the abled on October 1975.” perma- period of March 1978 where testing The recommended further partial disability nent would commence that, depending test re- 187.2 for weeks which means that the sults, might surgery be beneficial. further permanent disability benefits (AU) judge The administrative in 1981 would run out somewhere and, adopted panel report in a the medical early part We will therefore of 1982. stated, decision issued “[i]t defer consideration of this case further would is [Heaton] to at March 1981. After the date least entitled to dis- aforementioned, may applicant again ” ability compensation.... file with for a determina- the Commission permanent partial finding tion Notwithstanding disability total Judge disability, nent Sohm did not total refer to the Division of Vocational Heaton petition to this Heaton’s for review Court training, as for rehabilitation Rehabilitation the AU’s refusal to was dismissed because Ann. provided by Utah Code grant permanent benefits Instead, (Supp.1975). awarded AU appealable not a order. final partial disability bene- permanent partial disability The benefits “may enti- fits stated that expired carrier from insurance disability compensation tled from what, silent as to if 1981. The record is Special Fund Fund] [Second anything, transpired between date and expire.” by the insurance carrier 20, 1985, wrote let- March when Heaton a “A of the judge The also stated: review stating that his con- ter commission again time in case should be requesting dition worsened changed applicant’s case condition has Judge replied Sohm rights be clarified. surgery may have resulted or that future requesting if further Heaton were improvement.” benefits, physician a should have submit Heaton was able stating a whether denied Heaton’s motion commission work his condition had dete- and whether the award of bene- for review of riorated.1 fits. stated:' It retired, May 1985, Judge Sohm and in of the circumstances because 1985, Sohm, legal as Heaton’s case, now are not inclined to close June of this we showing attorney, January sub- evidence a with medical 1. In letter to Heaton’s dated order, Judge worsening Applicant’s condi- after the stantial stated: Sohm tion. significantly Applicant an can commence letter contributed It is true that This Applicant proceeding if the can show delay applying new Heaton’s substantially deteriorated his condition expiration of the after the was entered. In such the last Order since cases, permanent partial benefits October Application Applicant file a can new Applica- hearing, accompany but must counsel, evaluation, application filed specifically an asked: benefits on Heaton’s behalf. McNaught Ross Dr. sub- available, From the information can stating mitted a letter that he had exam- you if determine Mr. Heaton’s 25, 1985, ined July Heaton on that Heaton physical impairment on or about October fully surger- than, had never than, recovered 1981 was more less accident, ies after his industrial and that was about the same as it when evaluated neurological his was by condition deteriorat- in panel the medical March of 1979? ing. McNaught expressed Dr. concern panel, consisting While the second medical aggressive without treatment Heaton doctor, questioned degree of one the of would continue to deteriorate ultimate- impairment assigned by original the medi- ly become bedridden. the panel, panel cal the second also found: Injury stipulated Second Fund that Heaton significant change There is no in Mr. could not be rehabilitated waived the physical impair- Heaton’s requirement of Code Ann. dysfunction ment. of symptoms The are (Supp.1985) by be Heaton evaluated increased, reported objective while to be the Division of Vocational Rehabilitation as changes physical in examination cannot receiving a condition of appreciated. disability benefits. Judge panel’s report, the reviewed Sumsion, ALJ, Another Richard issued change but he did not the commencement conclusions, order, findings, and an dated Instead, date of the affirmed 18, 1985, November which stated that the original again his order. Heaton filed a by McNaught July examination Dr. review, by motion denied the only first new evi- “[t]he commission. dence in Applicant’s of a deterioration the appealed, Heaton and the court of finding condition a warranting” appeals order, affirmed commission’s disability. nent total The ALJ concluded including the date the AU for fixed was entitled to- permanent total disability accrual of bene beginning tal disability July fits, 25,1985. v. Inju Second McNaught’s the date of Dr. examina- Fund, ry Ct.App.1988). 758 P.2d 957 Yet, a of Heaton. in letter to Heaton’s Relying on Oman v. Industrial Commis 9, 1986, attorney on January Sum- sion, (Utah Ct.App.), 735 P.2d 665 cert. stated, sion “I that in must concede review- denied, (Utah 1987),2 ing the file it does Mr. Heaton appeals court of held that commission’s only permanently dis- determination of the commencement date abled at this time but been from the payment for injury.” time of his industrial “ long was within its discretion ‘so supported by as the filed a motion review with the determination is sub heard, patently commission. Before the motion was stantial evidence and unrea ” parties Heaton, (quot to submit the matter to sonable.’ 758 P.2d at 960 667). ing Oman, a second to determine The what 735 P.2d at court of pan medical treatment could be attributed to held the second medical sup the industrial and what el’s evidence” accident treatment was “sufficient porting was due to other causes. his letter the commission’s decision and that authorizing internally the medical conduct AU’s 1979 order was incon 51(a). petition R.App.P. 2. This Court denied a for certiorari merits.” Utah It should be em- argument phasized petition Oman. At of a oral counsel for that the denial certio- See, rely precedential seemed to rari value Fund on the has no whatsoever: argue e.g., Hopfmann 61, Connolly, denial 471 U.S. of certiorari in Oman that this 460- (1985); already primary Court had S.Ct. 85 L.Ed.2d addressed issue 469 Miller, Gressmann, clearly Wright, Cooper raised our & this case. rules Federal granting petition state of a Practice Jurisdiction § denial or and Procedure: (1977). certiorari "shall not constitute decision on the Rather, issue applied. issue of turns on the are not conclusive sistent and proper construction of a statute and disability. 758 on it. governing policy that underlies concluded that The court P.2d at 960. appeals, applying a “reasonable- evidence before court “there was sufficient “arbitrary” finding that standard sustain- there was ness” ALJ to change, ing if actions under any, what ‘no evidence applicant’s the commission broader gave in the condi place have taken years,’ Hea- latitude than it is entitled to. We conclude past six and that tion over the ques- the issue before this Court rendered ton was therefore, law, not, during the tion of and we do defer interim.” disabled sometime commission on construction of Stating P.2d at 960. Heaton, 758 statute, controlling terms of the as to the date that silent were duty of It is the the courts and payments should commence

total construe the Workers’ Com commission to appeals, relying court of accruing, the liberally in favor of em pensation Act Oman, that supplied own test. It held coverage statutory when terms rea ployee interpretation of “the Commission’s such a As sonably admit of construction. total ben statute that in v. Industrial Commis stated McPhie medi when there is sufficient efits accrue (Utah 1977): sion, 567 P.2d 153 that the claimant’s cal evidence equally recognized A rule of further disability has reason stabilized both any respect- resolves construction doubt at 758 P.2d able and rational.” compensation in favor of ing right of dissent, Judge Bench that 961. In stated employee] dependents, injured or of commencement the correct date be, compensa- and the as the case Oc benefits was liberally should con- tion statutes be 1985, 30, parties waived the date the tober recovery. of strued favor Reha the Division of Vocational referral to omitted). (footnotes P.2d 155 567 (Bench, P.2d at 758 962 bilitation. obligation when the The issue of J., dissenting). pay review, petition to the Second On this governed, by guided, if not should be arises argues Judge Bench’s Injury Fund provision (Supp.1975). That that the date for dissent is correct and permanent total payment of deals with cases of benefits odd-lot commencement injury, of it At the time Heaton’s re- the date of waiver of should either be pertinent part: Rehabil- the Division of Vocational ferral to of finding by commission [A] certi- date the division itation or the in all shall cases manent total be applicant cannot rehabilitat- fies that the not final until such time tentative and be ed. following proceedings have been as the solely before this Court is issue had: construction, i.e., statutory of a matter tentatively employee Where disability benefits permanent total whether to be been found 6, from to Heaton October paid should be mandatory be it shall 25, contends, or from as refer such commission of Utah ruled, or appeals the court of as of vocational employee to the division Judge Bench conclud state board of under the rehabilitation Injury Fund asserts. ed and the training.... for rehabilitation education of vocational when the division does turn on of the issue not Resolution of state board under the expertise in con- rehabilitation agency fact or issues of industrial com- in the education certifies that are found terms of art struing writing and in that such mission of Utah of words statute, on the construction nor fully co-operated with employee has meaning may be having an uncertain in its rehabilitation they of vocational division highly the facts colored him, effort to opin- rehabilitate and in the promote that which against we warned ion of the employee may division the previous cases, i.e., workers rehabilitated, be then the commission not become objects See, “the charity.” of shall order there paid to such e.g., Marshall Comm’n, v. Industrial employee weekly ... out P.2d 1984); Rocky Henrie v. special provided by sec- Mountain Packing Corp., fund 113 Utah 35-1-68(1), period such (1948). beginning with the pay- time that Here, question there is no that Heaton is (as ments in this provided) section Furthermore, disabled. parties all employer or its insurance stipulated that referral to the Division carrier terminate and ending with the of Vocational Rehabilitation was not neces- employee. death No employee, sary, apparently because the outcome was however, shall any be entitled to such foregone conclusion. co-oper- benefits if fails refuses ate with the division vocational reha- The court of stated that the stat bilitation as set herein.3 forth ute “is subject silent on the of when bene added.) (Emphasis began fits to accrue and is therefore am biguous,” 960-61, 758 P.2d at Although (Supp.1975) does not § ruled that the ruling sup directly fix the time ported by substantial evidence and was case, begin should accrue this patently “not unreasonable.” logic the and rationale underly that that P.2d at 961. The court reached that con section should apply also to a case that is clusion because perceive it failed to the virtually indistinguishable from a case that relevance of 35-1-67 and did not technically distin is within the statute. That sec- guish the critical factual provided difference that if a be fully worker “has tween this case and co-operated its own case of with the Oman division of vocational rehabilitation, Commission, v. Industrial ... and ... not be reha- bilitated,” Ct.App.), denied, cert. then total benefits (Utah 1987). paid by the Oman held that the date of Fund should “period commence at medical confirmation beginning the of time payments (as with the time in progressive injury that in this cases was provided) section by employ- be made commencement date for benefits. Oman, er or its however, insurance carrier 735 P.2d at Clearly, terminate and ending progressive case, with the death of the this is employee.” injury not a Basically, statutory designed scheme is the issue of when a total finally prevent gaps coverage that thwart the occurs is not at issue here. In the usual intent of the Compensation case, Workers’ Act progressive injury employ 35-1-67(5) (Supp.1989) currently 3. Section as writing cation certifies to the commission in written directs the employee Industrial Commission to fully cooperated that the determine the commencement date of agency that in its efforts to rehabilitate the employee totally as of the date the became employee, opinion agency, and in the of the permanently disabled if rehabilitation is not rehabilitated, employee is not able to be possible. provides: That section shall, par- the commission ties, after notice to the hearing hold (5) agency's to consider finding by perma- A the commission of opinion regarding well as other evidence nent total shall in all cases be tenta- parties may rehabilitation. The right following tive and not waive the final until all of the hearing. preponderance proceedings to a If a of the occurred: (a) Upon tentatively determining evidence shows that successful rehabilitation an disabled, employee possible, totally is commission shall order shall, employee paid weekly the commission unless otherwise by parties, employee compensation refer the benefits. The period State Office of Rehabilitation under the State commences on the date the of benefits employee Board permanently totally for Vocational Education for rehabili- became training.... tation as determined the commission based on the (b) If the Utah State Office of Rehabilitation and evidence.... facts added.) under the State (Emphasis Board for Vocational Edu- immediately fol prior ee is not disabled bilitated to the time that his lowing injury, but deterio his condition expired. duty nent benefit That period over some until the rates of time explicit under resulting injury is total. City Hardman Salt Lake Fleet Leaving kind of question com (Utah 1986), Management, 725 P.2d 1323 judgment mission’s makes sense no obligations this Court outlined the of each Here, be appropriate. fixed time would party in the process: rehabilitation was found AU to be an In order for an accurate assessment of at the time the accident and made, his rehabilitation to be section 35- finding has never contested. To been requires 1-67 to draw Commission apply the rule embodied in 35-1-67 to expertise upon the Division legislative merely case is to effectuate this Vocational Rehabilitation.... [the policy. employee cooperates Division,] with the The evidence before the commission the Division then certifies to the Commis- physical showed that Heaton had a employee’s sion that it has received the impairment injury due to an cooperation in full to rehabili- efforts longer perform that he was no able to him, opinion, tate in its he can- required in his The 1978 occupation. duties be rehabilitated. It is at this panel found medical been employ- the burden shifts to “totally disabled since the on Octo- er.... findings ber 1975.” AU’s 1979 Hardman, 725 P.2d 1327. In view of adopted the fact and conclusions of law finding in the AU’s 1979 that Heaton was panel’s findings and stated totally permanently the com- has been to work since unable “[Heaton] mission, AU, only needed to refer general, condition his [the accident]. Heaton to the Division of Vocational Reha- progressively worse and he has become finally After this res- bilitation. case was light to do activities.” been unable even urrected, requirement bypassed was not, however, did direct The commission parties stipulated when all that Heaton Heaton to the Division Vocational Reha- need not be evaluated the division. as it could have done. bilitation Quite clearly he was reha- not amenable to report agreed medical The 1987 with that, met all the bilitation. With findings of the first on all factors requirements for an un- award of benefits except impairment. the extent of The sec- der the statute. medical stated that Hea- ond argument The Second Fund’s condition had over the ton’s worsened argues on It also based Furthermore, 1986 letter years. the AU’s total benefits award probably had been as of should be made the date of a waiver totally manently and since the of referral Division of Vocational ever time of his accident. No evidence was no ac- Rehabilitation there has been findings challenged nor adduced made position referral to That tual the division. panel finding the 1978 elsewhere, has no totally and the disabled since 1975 been Heaton was entitled to finding that unable Heaton had been long ago. it is clear total benefits Since Furthermore, since the to work accident. im- permanently he disputed finding in one has ever an AU no in 1975 paired permanently Heaton was and to- 1979 that permanent partial pay- the time when tally Both administrative disabled. terminated, he indisputably enti- ments con- judges who reviewed Heaton’s case as of the tled to total benefits that his total commenced cluded date of the termination of the The commis- the time of accident. in effect have referred Heaton sion should his 1986 de- that conclusion in Division of Vocational Rehabilitation “I He stated: attorney. reha- letter to Heaton’s termine whether could have been reviewing must concede that the file it only Mr.

does Heaton is In re the Honorable Pamela GREEN- disabled at this WOOD, Commissioner, time but has been from the time of his Bar. State injury.” No. 890352. sum, erroneously Heaton was de- Supreme Court Utah. prived of benefits that should have started permanent partial to accrue as soon expired in October 1981. appeals correctly

The court of held statute, governing Utah Code Ann. (Supp.1985), that inter mandates percent per

est at the rate of 8 annum be

given on such awards. Marshall Indus Comm’n,

trial Therefore,

1985). Heaton is entitled to dating from October

interest such benefits. part, part,

Affirmed in reversed in

remanded.

HALL, C.J., HOWE, C.J., Associate J., DURHAM, concur.

ZIMMERMAN, (dissenting): Justice disposition

I dissent from the majority. equity, if As a matter of I my judgment

felt free to substitute judge

that of the administrative Commission, probably I

Utah Industrial way

would also find a to conclude that disability pay-

Heaton was entitled to total That, however, on.

ments from 1981

my role nor this role. court’s stated in the court of

For the reasons I

appeals’ opinion, conclude that there is the factual

sufficient evidence

conclusion reached the commission. properly Fund had raised question by filing cross-petition

certiorari, agree I would be inclined to of total Bench as to date disabili-

ty. appears that issue not to be

properly before us.

Case Details

Case Name: Heaton v. Second Injury Fund

Court Name: Utah Supreme Court

Date Published: May 25, 1990

Citation: 796 P.2d 676

Docket Number: 880335

Court Abbreviation: Utah