Case Information
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T HE U TAH C OURT OF A PPEALS
T OMMY M IGLIACCIO , Petitioner, v.
L ABOR C OMMISSION AND S ALT L AKE C OUNTY ,
Respondents. Memorandum Decision No.
Filed February
Original Proceeding Court
Richard R. Burke, Attorney for Petitioner
Thomas C. Sturdy Dori K. Petersen, Attorneys for Respondent Salt Lake County
Alan L. Hennebold, Attorney for Respondent
J UDGE J AMES Z. D AVIS authored Memorandum Decision, J UDGES C AROLYN B. M C H UGH M ICHELE M. C HRISTIANSEN concurred.
DAVIS, Judge: Tommy seeks judicial review Labor decision deny request for workers’
compensation benefits cervical spine injury asserts was caused or aggravated by an industrial accident that occurred September 2006. We not disturb the decision. ¶2 Migliaccio asserts that the issue medical was and that as a result, the administrative law judge (ALJ) abused her discretion when she referred a medical panel conclusion hearing. Likewise, Migliaccio contends that was entitled judgment favor matter law Salt Lake County (the County) failed adequately dispute medical and further argues that findings accordance medical panel’s recommendation were supported evidence. Utah Code gives ALJ discretion convene medical panel when reviewing workers’ compensation cases. See Code Ann. § 34A 601(1)(6) (LexisNexis 2011) (“An administrative law judge may appoint medical panel upon filing compensation upon disability death 1. It unclear on what specific day occurred. appellate brief states September 16, Salt Lake County’s appellate brief and ALJ’s findings indicate was on September letter from one doctors treated puts it at September testimony at administrative hearing was occurred September 14. Two panels were convened case. Migliaccio successfully moved reconstitute first panel, although at time panel had already filed report, concluding injuries related industrial accident. A second panel was convened, medical report, reached same conclusion, admitted into ultimately relied Commission. It does appear first panel’s report was admitted into evidence.
due to an occupational disease.”). [3] However, Utah Administrative Code requires an ALJ utilize a medical panel “where one or more significant medical issues may be involved”
Migliaccio two months before accident, and several physicians noted that Migliaccio specifically denied that his pain was attributable particular work accident denied that he had any issues with his neck, with one physician actually confirming that Migliaccio’s neck was healthy after conducting tests it. Several days after the occurred, see supra note 1, physical therapist noted that Migliaccio considered his issues constitute “work injury.” Further, another physician evaluating Migliaccio on February reported that Migliaccio described his pain as handicapping, extent that he could hardly lift shovel, much less work one. The physician wrote that Migliaccio stated that he essentially “could use his arms due pain that couldn’t even pick his nose.” However, physician also noted that despite Migliaccio’s description his pain, surveillance videos recorded November private investigator This contrary Migliaccio’s assertions that was not his neck was examined until seven months after work accident, then neck was examined by only one doctor, Dr. Michael Giovanniello. Dr. Giovanniello believed Migliaccio’s neck pain was connected work accident. correct that only Dr. Giovanniello specifically examined whether there was causal link between Migliaccio’s neck pain accident. However, reported no neck pain physicians treating him earlier process—only symptoms hindsight could be considered manifestations neck injury—and one physician did, fact, rule out neck injury evaluating neck, disputes by suggesting neck injury was unrelated. ALJ’s conclusions neck injury unrelated reflects their decisions place more weight credibility suggesting two linked, than implication injury was merely latent misinterpreted several months. infra ¶¶ 8–10.
showed in little no apparent discomfort while shoveling dirt, digging, using shovel strike ground with significant force, carrying objects from his truck his house, swinging long plank of wood, opening and closing doors and the tailgate of his truck, and swinging his arms while driving four ‐ wheeler. These inconsistencies alone—not including other
inconsistencies referenced by County at hearing and in its appellate brief, as well as those noted by her decision to convene medical panel—indicate medical causation and extent Migliaccio’s disability were unclear. confusion to what date work occurred and Migliaccio’s initial denial injuries attributable specific accident undermines assertion an occurred. Further, County disputed its response to Migliaccio’s Application For Hearing and again its prehearing disclosures, where County explained planned present testimony from private investigator aforementioned surveillance video recorded investigator, otherwise rely records litigate its defenses “[l]ack of legal causation,” “[p]re existing condition,” “[l]ack competent suggest permanent total disability,” and “[a]ny continuing problems are industrial disease qualifying apportionment.” In addition presenting surveillance video private investigator’s testimony at hearing, County also causation through its cross examinations Migliaccio, County’s claims adjuster, supervisor. That County relied inconsistencies evidence, than submitting own evidence—which would presumably be duplicative many records already submitted Migliaccio—is little consequence under facts circumstances case. Cf. Willardson at ( requiring argument Administrative Code rules ‐ (continued...) *6 Migliaccio the ALJ to refer the to medical panel where the petitioner’s contained conflicting conclusions regarding medical causation, despite the fact the “[r]espondents did not provide medical information to rebut” the petitioners’ medical reports). Thus, the rightly referred the issue to medical panel for assistance. [6]
5. (...continued)
2 ‐ 1.A.4 602 ‐ 2 ‐ 1.B.3 require ruling in favor in light County’s failure to supply its own reports, is unavailing. Indeed, the plain language rule 602 ‐ 2 ‐ 2.1.B.3 indicates it applies specifically to “Applications for Hearing,” responses to those applications. See generally Admin. Code R602 ‐ 2 ‐ 1.A.4, R602 ‐ ‐ 1.B.3. Here, Migliaccio applied hearing, County. And where the administrative rules explain respondent’s denial liability on “medical issues” “shall” be accompanied “copies reports sufficient support denial,” rules mandate failure do so essentially results judgment on pleadings in petitioner’s favor, as Migliaccio asserts. id. R602 1.C.4; id. R602 ‐ ‐ 1.C.5 (“If answer filed respondents fails sufficiently explain basis denial[ or] fails include reports records to support denial . Division may strike answer filed order respondent file within days, new answer which conforms requirements this rule.”). Further, it simply illogical interpret administrative rules require, this case, County resubmit records already submitted, than simply reference its reliance those records response. Implicit our ruling our disagreement with assertion once satisfied burden
production causation, burden shifted employer to affirmatively produce disputing causation, burden asserts County did satisfy did not present separate evidence. As court has stated,
(continued...)
*7
Migliaccio v. Labor
Last, Migliaccio asserts that findings were
not supported by substantial evidence.
[7]
“We must uphold the
factual findings if such findings are supported by
based upon record as a whole.”
Brown &
Root Indus. Serv. v. Industrial Comm ʹ n
,
defense that merely controverts [a] plaintiff’s prima facie is
negative character.”
Blair v. Comm ʹ n
,
Migliaccio v. Labor “It is not the role this court reweigh the substitute our conclusion that the Commission. Instead, we defer the Commission’s findings because, when reasonably conflicting views arise, it is the Commission’s province draw inferences resolve these conflicts.” Speirs v. Southern Utah Univ. , UT App ¶ (citations internal quotation marks omitted).
¶8 Migliaccio specifically challenges Commission’s finding that Dr. Michael Giovanniello first concluded that Migliaccio’s cervical spine was unrelated his work accident, only to change his mind later. Migliaccio also argues that finding relied on by Commission that none physicians who treated immediately after work accident noted any complaints neck pain injury is irrelevant these physicians were evaluating his upper extremities exclusively. He asserts that finding by Commission is on Commission’s assumption that pain should have been apparent immediately accident. According to Migliaccio, limited nature these physicians’ examinations neither confirms nor disproves cervical spine was injured by work accident. We disagree these contentions. ¶9 Although does appear wrongly described Dr. Giovanniello having first opined “Migliaccio’s cervical spine condition not related only eventually change opinion,” single inconsistency does render determination invalid. medical panel’s report concludes injuries caused by industrial sufficient, own, support decision. Cf. Cunningham Comm ʹ n 2004 UT App 276U, para. (mem.) (“Each findings [the petitioner] challenges supported . . . panel’s report, would satisfy our requirement findings be supported . .”). Further, has challenged substance panel’s report appeal—his appellate briefs address panel’s v. Labor findings; briefs merely reiterate assertion that was ambiguous. [8] ¶10 Nonetheless, putting aside the unchallenged merits the panel’s report, we believe it is relevant the determination of various physicians’ reports documenting Migliaccio’s complaints for seven months the accident are either devoid of any mention of neck pain or affirmatively note Migliaccio’s denial neck pain, with at least one evaluation confirming Migliaccio’s neck healthy. Contrary Migliaccio’s assertion these findings are based on assumption about what symptoms should have experienced and when, the lack complaint neck pain for seven months also raises question whether the pain was related at all. That Dr. Giovanniello’s reports were consistent earlier reports does undermine Commission’s decision; rather, it reflects Commission’s decision resolve conflicts evidence against Migliaccio. See Speirs , UT App ¶ 13. Accordingly, we determine Contrary assertion failed to explain how reached conclusion, order affirming ALJ’s decision stated, “The [medical] panel’s conclusion Mr. cervical spine problems not medically caused persuasive panel’s report thorough, well reasoned collegial impartial review record.” failure address panel’s findings at all is arguably grounds dismiss failure marshal the evidence. generally Whitear Comm ʹ n 984 (Utah Ct. App. 1998) (“A party seeking overturn factual findings must marshal[] . all supporting findings show despite supporting facts, light conflicting contradictory evidence, findings are supported evidence.” (emphasis, citation, internal quotation marks omitted)). had substantial could base dismissal Migliaccio’s lack causation. In sum, had discretion, perhaps obligation, refer panel. County adequately raised causation, decision dismiss complaint is indicating cervical ‐ spine issues unrelated accident. We therefore do disturb decision.
notes such a circumstance “[g]enerally [involves] .
conflicting medical reports.”
See
Utah Admin. Code R602 ‐ 2 ‐ 2.A.
Particularly, conflicting reports regarding medical of an
employee’s injuries constitute a “significant medical issue,”
requiring involvement medical panel.
See Willardson v.
Industrial Comm’n
,