Fogleman v. Labor Commission , 364 P.3d 756 ( 2015 )

2015 UT App 294THE UTAH COURT OF APPEALS
SANDRA GAIL FOGLEMAN,
Petitioner,
v.
LABOR COMMISSION, KOLOB CARE AND REHABILITATION CENTERS,
AND PENNSYLVANIA MANUFACTURERS
ASSOCIATION INSURANCE COMPANY,
Respondents.
Opinion
No. 20141137-CA
Filed December 10, 2015
Original Proceeding in this Court
Virginius Dabney and Sonia Huntsman Ickes,
Attorneys for Petitioner
Jaceson R. Maughan, Attorney for Respondent
Labor Commission
Eric J. Pollart, Christin Bechmann, and Mark A.
Riekhof, Attorneys for Respondents Kolob Care and
Rehabilitation Centers and Pennsylvania
Manufacturers Association Insurance Company
JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.
PEARCE, Judge:
¶1 Sandra Gail Fogleman seeks judicial review of the denial
of her application for permanent total disability compensation.
We conclude that the Utah Labor Commission’s Appeals Board
(the Board) did not err in affirming an administrative law
judge’s denial of Fogleman’s claim for permanent total disability
compensation. We also conclude that the Board did not err by
declining to award Fogleman compensation for the treatment of
conditions it found to be medically unrelated to her industrial
Fogleman v. Labor Commission
accident. Accordingly, we decline to disturb the Board’s
decision.
BACKGROUND 1
¶2 Kolob Care and Rehabilitation Centers (Kolob) is a
medical care facility. 2 Fogleman worked as Kolob’s receptionist.
Her duties included greeting visitors, answering the telephone,
filing paperwork, and interacting with vendors. Additionally,
Fogleman handled Kolob’s mail, which required her to visit an
on-site mailbox by walking through a parking lot and up a
“slight incline across some stepping stones.”
¶3 While delivering mail to the mailbox one day, Fogleman
fell and landed on her hands and knees (the Work Accident).
Fogleman believes that an unstable stepping stone “‘flipped’
causing her to fall.” Because Fogleman was carrying the mail in
her left hand, “[s]he felt most of the force of the fall on her right
knee, hip and hand.”
¶4 After a coworker cleaned her wounds, Fogleman finished
her work shift. Later that day, Fogleman visited an urgent care
provider. The clinic assessed Fogleman with “contusions and
abrasions” on her hands and knees. Fogleman’s hands
eventually healed, but her knee and hip pain continued.
1. In reviewing the Board’s decision, “we view the facts in the
light most favorable to [the Board’s] findings.” Swift Transp. v.
Labor Comm’n, 2014 UT App 104, ¶ 2 n.1, 326 P.3d 678. Due to the
“extensive medical records presented in the record, we discuss
only those injuries and medical diagnoses necessary to
understand the issues presented.” See id.
2. At the time of Fogleman’s industrial accident, Kolob was
insured by Pennsylvania Manufacturers Association Insurance
Company.
20141137-CA 2 2015 UT App 294Fogleman v. Labor Commission
¶5 At a doctor’s appointment roughly six months after the
Work Accident, Fogleman complained of “pain and numbness in
her right leg extending to the foot,” in addition to her ongoing
knee and hip pain. A lumbar magnetic resonance imaging (MRI)
revealed “multilevel degenerative disc disease” in Fogleman’s
spine.
¶6 Fogleman received diagnoses for her ailments from a
number of other physicians. One doctor concluded that
Fogleman was “probably 100%” impaired from the Work
Accident. Another found that the “original complaints were
reasonably caused by [the Work Accident] but that current
presentation no longer correlates with . . . the original
condition.” That physician also concluded, “The current clinical
findings are atypical of the original medical condition and
cannot reasonably be causally associated.”
¶7 Fogleman applied for workers’ compensation benefits,
and as part of the proceedings, the parties submitted Fogleman’s
medical history. Due to the divergent medical conclusions in
Fogleman’s medical records, the administrative law judge (the
ALJ) assigned a medical panel to examine Fogleman and opine
on her condition.
¶8 The panel examined Fogleman and reviewed her medical
records. The panel issued a report, finding,
[Fogleman’s] hands have significantly improved
and are no longer painful. She has occasional
numbness when using the hands in certain
ways. The contusions suffered to the hands at the
time of injury have healed. The [pain in her]
knees continue[s] to be a problem . . . . There is
pain in the anterior aspect of the knee, patellar
crepitus, and a mild limp. Although MRI
examinations have failed to show injury to the joint
surfaces of the knees, medications and physical
20141137-CA 3 2015 UT App 294Fogleman v. Labor Commission
therapy have been administered without a pain
relieving effect, the right knee continues to be
painful. It has been given the diagnosis of
traumatic chondrosis and chondromalacia. . . . This
has not been demonstrated on the MRI
examinations.
Since the injury, she has also developed right hip
pain . . . . This hip pain was not noted on the initial
examination, but, [in later examinations] it had
become notable. . . . It continues to be a painful
problem.
In response to a specific question posed by the ALJ, the medical
panel concluded that there was “a causal connection between the
injuries to the knees, hands, and right hip and [the Work
Accident],” but that there was “no connection between the back
pain and sciatica and [the Work Accident].”
¶9 The medical panel also responded to other specific
questions. The medical panel opined that: (1) Fogleman had
suffered a two percent whole-person impairment as a result of
the Work Accident; (2) “[t]he majority of patients, after such an
injury, would have returned to full function some weeks after
[the Work Accident]”; and (3) Fogleman’s “depression and
anxiety compound her current concerns.” The panel also stated
that “[n]o objective test[s] have shown clear injury . . . . [But]
Fogleman has not been able to return to work function.” The
panel recommended maximum restrictions on any work
Fogleman might perform of “no deep knee bends, no lifting
greater than 30 pounds except on an occasional basis, and no
excessive stair climbing (more than 3 times per four hour shift).”
¶10 The ALJ deemed “the opinion of the medical panel to be
the persuasive evidence to resolve the conflicts in medical
conclusions between various physicians in the case.” Based on
the medical panel report, the ALJ found that as a result of the
20141137-CA 4 2015 UT App 294Fogleman v. Labor Commission
Work Accident, Fogleman suffered an injury to her hands, right
hip, and knees; that the injury to her hands had completely
healed; and that her hip and knees had “reached a point of
medical stability.” The ALJ concluded that Fogleman suffered a
two percent whole-person impairment as a result of the Work
Accident. The ALJ also adopted the medical panel’s finding with
regard to Fogleman’s maximum work restrictions.
¶11 The ALJ granted Fogleman temporary total disability
compensation from the date of the Work Accident to the date of
the Work Accident impairments’ medical stabilization. The ALJ
also awarded permanent partial disability compensation for
Fogleman’s Work Accident impairments and awarded
compensation for medical treatment related to Fogleman’s hand
and hip injuries.
¶12 However, the ALJ denied Fogleman’s permanent total
disability claim. The ALJ concluded that Fogleman had not
established any of the three elements a claimant is required to
prove to qualify for permanent total disability compensation.
See Utah Code Ann. § 34A-2-413(1)(b) (LexisNexis Supp. 2015). 3
The ALJ ruled that Fogleman had not established that she
had sustained a significant impairment or combination of
impairments as a result of the Work Accident, the first element
of a permanent total disability compensation claim. See id. § 34A-
2-413(1)(b)(i). The ALJ found that the injury to Fogleman’s
3. “[I]n workers’ compensation claims, the law existing at the
time of the injury applies in relation to that injury.” Ameritemps,
Inc. v. Labor Comm’n, 2005 UT App 491, ¶ 1 n.1, 128 P.3d 31(citation and internal quotation marks omitted). Although Utah
Code section 34A-2-413 has been amended since Fogleman’s
injury, the amendments do not affect the particular subsections
at issue in this case. Compare Utah Code Ann. § 34A-2-413(1)(b)–
(c) (LexisNexis Supp. 2010), with id. (2015). For convenience, we
cite the most recent version of the statute.
20141137-CA 5 2015 UT App 294Fogleman v. Labor Commission
hands, knees, and hip had stabilized and only created “minimal
[physical] restrictions” for Fogleman. The ALJ did not include
Fogleman’s back injury in the significant impairment analysis
because it was not “medically caused by [the Work Accident].”
¶13 The ALJ also held that Fogleman had not established a
permanent total disability or that the Work Accident was the
“direct cause” of a permanent total disability, the second and
third elements of a permanent total disability compensation
claim. See id. § 34A-2-413(1)(b)(ii)–(iii). Rather, the ALJ
concluded that Fogleman’s back injury, which the ALJ found to
be unrelated to the Work Accident, was the cause of the
“mobility and pain problems that are responsible for the
disability that keeps [Fogleman] from finding employment.”
¶14 Fogleman sought the Board’s review of the ALJ’s order.
The Board affirmed the ALJ’s ruling. It concluded, among other
things, that Fogleman did not sustain a significant impairment or
combination of impairments from the Work Accident. The Board
focused on the Work Accident impairments and their effect on
Fogleman’s ability to perform her prior work activities.
¶15 The Board, like the ALJ, did not consider conditions that
were not found to be a result of the Work Accident. It then
concluded that the Work Accident impairments “do not
significantly impair [Fogleman’s] ability to do the type of office
work she has mainly performed since 1991.” And, because the
Work Accident caused Fogleman only “minor injuries” that did
not affect her ability to engage in her prior work activities, it
held that Fogleman’s two percent whole-person impairment did
not constitute a significant impairment under Utah Code section
34A-2-413(1)(b)(i). Accordingly, the Board affirmed the ALJ’s
denial of Fogleman’s claim for permanent total disability
compensation. Fogleman now seeks review of the Board’s
decision.
20141137-CA 6 2015 UT App 294Fogleman v. Labor Commission
ANALYSIS 4
I. The Board’s Denial of Fogleman’s Claim for Permanent Total
Disability Compensation
A. Utah’s Permanent Total Disability Compensation Statute
¶16 Before turning to Fogleman’s arguments, we review the
statutory framework governing claims for permanent total
disability compensation. To qualify for permanent total
disability benefits, an employee must prove three statutory
elements by a preponderance of the evidence. Utah Code Ann.
§ 34A-2-413(1)(b) (LexisNexis Supp. 2015). The employee must
establish that:
(i) the employee sustained a significant
impairment or combination of impairments
as a result of the industrial accident . . . that
gives rise to the permanent total disability
entitlement;
(ii) the employee has a permanent, total
disability; and
(iii) the industrial accident . . . is the direct cause
of the employee’s permanent total disability.
Id. To establish the second element—a permanent, total
disability—the employee must also demonstrate, by a
preponderance of the evidence, that:
(i) the employee is not gainfully employed;
4. Fogleman raises a number of issues on appeal. We identify the
appropriate standard of review for each issue in the section of
our analysis addressing that issue.
20141137-CA 7 2015 UT App 294Fogleman v. Labor Commission
(ii) the employee has an impairment or combination of
impairments that limit the employee’s ability to do
basic work activities;
(iii) the industrial or occupationally caused impairment
or combination of impairments prevent the
employee from performing the essential functions
of the work activities for which the employee has
been qualified until the time of the industrial
accident . . . that is the basis for the employee’s
permanent total disability claim; and
(iv) the employee cannot perform other work
reasonably available, taking into consideration the
employee’s [age, education, past work experience,
medical capacity, and residual functional capacity.]
Id. § 34A-2-413(1)(c).
¶17 An employee’s failure to establish any one of the elements
defeats her claim for permanent total disability compensation.
See id. § 34A-2-413(1)(b)–(c); see also Prows v. Labor Comm’n, 2014
UT App 196, ¶¶ 12, 19, 333 P.3d 1261 (upholding the Utah Labor
Commission’s denial of permanent total disability compensation
because the employee did not establish one element).
B. Fogleman’s Challenges to the Board’s Denial of Her
Permanent Total Disability Compensation Claim
1. The Board’s Interpretation of Utah Code Section 34A-2-
413(1)(b)(i)
¶18 Fogleman challenges the Board’s conclusion that she did
not sustain a significant impairment. See Utah Code Ann. § 34A-
2-413(1)(b)(i) (LexisNexis Supp. 2015). Fogleman argues that the
Board erred by not considering her “as an individual, taking all
of her issues, including those sustained from [the Work
Accident], into consideration.” In essence, Fogleman contends
20141137-CA 8 2015 UT App 294Fogleman v. Labor Commission
the Board erred in interpreting the statute as requiring it to
disregard impairments not causally related to the Work Accident
in determining whether she had suffered a significant
impairment. Whether the Board correctly interpreted Utah Code
section 34A-2-413(1)(b)(i) is a matter of law that we review for
correctness, “granting little or no deference to [the Board’s]
determination.” Utah Chapter of the Sierra Club v. Board of Oil, Gas,
& Mining, 2012 UT 73, ¶ 9, 289 P.3d 558 (citation and internal
quotation marks omitted).
¶19 Fogleman asserts that the Board should have considered
her back injury as well as her anxiety and depression to
determine whether she had sustained a significant impairment.
The Board recognized that Fogleman suffered from those
conditions, but did not include them in its analysis because it
concluded they were not causally related to the Work Accident.
¶20 For the purpose of determining whether Fogleman had
suffered a significant impairment, the Board did not err by
reading the statute as requiring it to disregard impairments it
found to not be causally related to the Work Accident.
Subsection 413(1)(b)(i) requires the employee to establish that
she “sustained a significant impairment or combination of
impairments as a result of the industrial accident . . . that gives
rise to the permanent total disability entitlement.” Utah Code
Ann. § 34A-2-413(1)(b)(i) (emphases added). By its plain
language, then, the statute requires Fogleman to show that her
impairment or combination of impairments was sustained “as a
result of” the Work Accident and that it “gives rise to the
permanent total disability.” See id.; see also Marion Energy, Inc. v.
KFJ Ranch P'ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (“[W]hen faced
with a question of statutory interpretation, our primary goal is to
evince the true intent and purpose of the Legislature. The best
evidence [of that] is the plain language of the statute itself.”
(citations and internal quotation marks omitted)).
20141137-CA 9 2015 UT App 294Fogleman v. Labor Commission
¶21 Fogleman’s argument does not address the plain
language of the statute. Nor does she address cases in which this
court has appeared to endorse the Board’s reading of the statute.
See, e.g., Clawson v. Labor Comm’n, 2013 UT App 123, ¶ 10 & n.4,
302 P.3d 1247 (concluding that the Board did not err by
disregarding an employee’s preexisting medical conditions that
were unrelated to the work accident in its permanent total
disability analysis but setting aside the Board’s decision on other
grounds). 5 In the absence of an argument squarely addressing
the statute’s plain language and the cases that cut against her
position, Fogleman cannot sustain her burden on appeal of
demonstrating that the Board misinterpreted the statute.6
5. Fogleman does posit that many cases support her argument.
See Hardman v. Salt Lake City Fleet Mgmt., 725 P.2d 1323 (Utah
1986); Kaiser Steel Corp. v. Industrial Comm’n, 709 P.2d 1168 (Utah
1985); Marshall v. Industrial Comm’n, 681 P.2d 208 (Utah 1984);
USX Corp. v. Industrial Comm’n, 781 P.2d 883 (Utah Ct. App.
1989). However, these cases are of little assistance to our analysis
here, as each interpreted a prior version of a workers’
compensation statute that did not require the claimant to prove a
significant impairment or combination of impairments as a
result of the industrial accident.
6. Fogleman’s argument may be read to assert that the Board
should have considered her other ailments because they pre-
existed the Work Accident and contributed to her overall
condition following the Work Accident. But, Fogleman does not
support this contention with analysis of the current version of
the statute or cases interpreting that statute. Fogleman cannot
sustain her burden on appeal without developing an argument
based upon the current statute. See, e.g., State v. Robison, 2006 UT
65, ¶ 21, 147 P.3d 448 (noting that the appellant bears the burden
of persuasion on appeal and that an appellate court will not
“do the heavy lifting” for the appellant); Hi-Country Estates
(continued…)
20141137-CA 10 2015 UT App 294Fogleman v. Labor Commission
¶22 Therefore the Board did not err by considering only those
impairments that were the result of the Work Accident in its
significant impairment determination under Utah Code section
34A-2-413(1)(b)(i).
2. The Board’s Significant-Impairment Determination
¶23 Fogleman also argues that the Board erred in concluding
that her two percent whole-person impairment did not
constitute a significant impairment.
a. Standard of Review
¶24 Determining “whether a particular impairment is
‘significant’ . . . requires a court to evaluate the severity of the
impairment and determine whether the level of impairment
exceeds a minimum threshold.” Provo City v. Labor Comm’n, 2015
UT 32, ¶ 16, 345 P.3d 1242. This question is a mixed question of
law and fact that we review “either deferential[ly] or de novo,
depending on the nature of the particular mixed question.” Id.
¶ 17. The particular standard of review depends on three factors:
(1) the degree of variety and complexity in the facts
to which the legal rule is to be applied; (2) the
degree to which a trial court’s application of the
legal rule relies on facts observed by the trial judge,
such as a witness’s appearance and demeanor,
relevant to the application of the law that cannot be
adequately reflected in the record available to
appellate courts; and (3) other policy reasons that
weigh for or against granting [deference] to trial
courts.
(…continued)
Homeowners Ass’n v. Jesse Rodney Dansie Living Tr., 2015 UT App
218, ¶ 5, 359 P.3d 655.
20141137-CA 11 2015 UT App 294Fogleman v. Labor Commission
Murray v. Labor Comm’n, 2013 UT 38, ¶ 36, 308 P.3d 461(alteration in original) (citation and internal quotation marks
omitted). In Murray, the Utah Supreme Court analyzed the issues
presented by a mixed question of law and fact and, to determine
the particular standard of review, asked whether their resolution
was “fact-like”—i.e., the administrative tribunal is in a superior
position to decide the question—or “law-like”—i.e., the question
lends “itself to consistent resolution by a uniform body of
appellate precedent.” Id. ¶ 37 (citation and internal quotation
marks omitted).
¶25 In Provo City, the supreme court addressed an argument
similar to the one at issue here and determined that it was a fact-
like question, reviewed deferentially under a substantial
evidence standard. See 2015 UT 32, ¶¶ 18, 23–24. There, the court
reviewed the Board’s significant-impairment determination,
which was based on a six percent whole-person impairment, for
substantial evidence. Id. ¶¶ 23–24. Because the question
presented here does not differ materially from that in Provo City,
we review Fogleman’s challenge to the Board’s decision under a
substantial-evidence standard. See id. “A finding is supported by
substantial evidence when a reasonable mind might accept as
adequate the evidence supporting the decision.” Bailey v.
Retirement Bd., 2012 UT App 365, ¶ 2, 294 P.3d 577 (citation and
internal quotation marks omitted).
b. The Board’s Application of the Law to the Facts
¶26 Fogleman argues that the Board erred in finding that her
impairments did not constitute a significant impairment and by
failing to “include all of [her] work limitations as found by the
medical panel” in its significant-impairment determination.
¶27 Fogleman relies on two Utah Supreme Court cases to
argue that “a low percentage of physical impairment is not per
se less than [a] permanent total disability” and to argue that the
disability must be evaluated “in terms of the specific individual
20141137-CA 12 2015 UT App 294Fogleman v. Labor Commission
who has suffered a work-related injury.” See Hardman v. Salt Lake
City Fleet Mgmt., 725 P.2d 1323 (Utah 1986); Kaiser Steel Corp.
v. Industrial Comm’n, 709 P.2d 1168 (Utah 1985). 7 We readily
agree. We can envision situations in which a low-percentage
impairment or impairments could meet Utah Code section 34A-
2-413(1)(b)(i)’s significant-impairment standard. But these
considerations do not lead us to conclude, as Fogleman argues,
that the Board’s determination here is not supported by
substantial evidence.
¶28 Noting the disagreement between treating physicians, the
ALJ convened a medical panel. That panel reviewed the medical
records and examined Fogleman. The Board found the medical
panel report persuasive and expressly adopted it. In doing so,
the Board found, among other things, that Fogleman suffered
injuries to her hands, knees, and right hip, amounting to a two
percent whole-person impairment, and that her physical
restrictions did not prevent her from performing office work
similar to her duties at Kolob.
¶29 The medical panel also determined that Fogleman’s knee,
hand, and right hip injuries were medically causally related to
the Work Accident. It found that there were “no X-ray or
surgical abnormalities documented that related to [Fogleman’s]
impairments.” The panel also noted that Fogleman complained
of continued pain in her hip and right knee, but found that “[n]o
objective test[s] have shown clear injury,” and that a “normal
range of motion returned in less than a month after the injury.”
In light of that evidence, we cannot conclude the Board’s
7. It bears noting that Hardman v. Salt Lake City Fleet Management,
725 P.2d 1323 (Utah 1986), and Kaiser Steel Corp. v. Industrial
Commission, 709 P.2d 1168 (Utah 1985), were decided under a
prior statute that did not require a “significant impairment”
determination. See Hardman, 725 P.2d at 1325; Kaiser, 709 P.2d at
1170.
20141137-CA 13 2015 UT App 294Fogleman v. Labor Commission
determination—that Fogleman’s two percent whole-person
impairment does not constitute a significant impairment—lacks
a substantial evidentiary basis. 8
¶30 While Fogleman continues to have pain in her right knee
and hip, substantial evidence supports the Board’s finding that
those impairments’ maximum effect on her work abilities does
not prevent her from carrying out her prior day-to-day work
activities. Accordingly, we decline to disturb the Board’s
determination that Fogleman’s impairments do not “exceed[]
[the] minimum threshold,” see Provo City v. Labor Comm’n, 2015
UT 32, ¶ 16, 345 P.3d 1242, and thus do not constitute a
significant impairment under Utah Code section 34A-2-
413(1)(b)(i). 9
8. Fogleman also contends that the Board erred by failing to
include all of her work limitations “as found by the medical
panel (i.e. low back, gait abnormality, continuing pain,
avoidance of activities and establishing a tolerable lifestyle, pain
perception, depression, and anxiety).” We disagree. The Board
adopted the medical panel’s findings regarding the “maximum
restrictions” caused by her impairments and the panel’s two
percent whole-person impairment finding, among other things.
While the Board may not have specifically highlighted each
aspect of Fogleman’s impairments or provided an exhaustive list
of each of their manifestations, it adopted the findings of the
medical panel and made findings of fact. Only after the Board
made these findings, which are supported by substantial record
evidence, did it conclude that Fogleman’s impairments did not
constitute a significant impairment.
9. Fogleman also argues that the odd-lot doctrine requires an
evaluation of the Work Accident and non-Work Accident
impairments. “The odd lot doctrine allows [the Board] to find
permanent total disability when a relatively small percentage of
(continued…)
20141137-CA 14 2015 UT App 294Fogleman v. Labor Commission
3. Fogleman’s Remaining Challenges Regarding the Board’s
Denial of Her Claim for Permanent Total Disability
Compensation
¶31 Fogleman raises a number of other challenges to the
Board’s denial of her permanent total disability compensation
claim. Because Fogleman has not carried her burden of
demonstrating that the Board erred in concluding that the Work
Accident impairments do not constitute a significant
impairment—a required element of her claim—we need not
address Fogleman’s remaining arguments. See supra ¶¶ 16–17.
¶32 Accordingly, we conclude that the Board did not err by
restricting its significant impairment analysis, under Utah Code
section 34A-2-413(1)(b)(i), to Fogleman’s impairments resulting
from the Work Accident. And the Board’s determination that
Fogleman’s impairments do not amount to a significant
(…continued)
impairment caused by an industrial accident is combined with
other factors to render the claimant unable to obtain
employment.” Zupon v. Industrial Comm’n, 860 P.2d 960, 963
(Utah Ct. App. 1993). The odd-lot doctrine requires the court to
determine “the extent to which [the employee’s impairment or
impairments] affects the employee’s ability to return to full
employment.” Olsen v. Labor Comm’n, 2011 UT App 70, ¶ 18, 249
P.3d 586. But, as we determined above, Fogleman has not carried
her burden to establish that she suffered from a significant
impairment under Utah Code section 34A-2-413(1)(b)(i). Thus,
the odd-lot doctrine does not come into play here. See generally
Mercado v. Labor Comm’n, 2014 UT App 268, ¶¶ 12–13, 339 P.3d
158 (holding that the Board had a “sufficient basis” for denying
the employee’s benefits under the odd-lot doctrine); Olsen, 2011
UT App 70, ¶¶ 11, 18–25 (reviewing the odd-lot doctrine’s
applicability to an employee’s claim for permanent total
disability benefits).
20141137-CA 15 2015 UT App 294Fogleman v. Labor Commission
impairment is supported by substantial evidence. We decline to
disturb the Board’s denial of Fogleman’s claim for permanent
total disability compensation.
II. The Board’s Alleged Failure to Give Fogleman the “Benefit of
the Doubt”
¶33 Fogleman also argues that we should overturn the
Board’s decision because the “Board failed to properly consider
[the] long-standing rule of statutory construction applicable to
all industrial claims”—that “her claim be liberally construed in
favor of awarding benefits, and that any doubts raised from the
evidence be resolved in favor of her claim.” We are required to
“look closely to assure ourselves that [the Board] has liberally
construed and applied the [Workers’ Compensation Act] to
provide coverage and has resolved any doubt respecting the
right to compensation in favor of an injured employee.” Salt Lake
City Corp. v. Labor Comm’n, 2007 UT 4, ¶ 16, 153 P.3d 179.
¶34 Fogleman raised this argument before the Board. The
Board rejected it, reasoning that giving Fogleman the benefit of
the doubt and applying statutes liberally “does not mean
ignoring the persuasive medical evidence that [the Work
Accident] did not result in a significant impairment or render
[Fogleman] permanently and totally disabled.”
¶35 We agree with the Board. It is true that the Workers’
Compensation Act is “to be construed liberally, resolving any
doubt as to an employee’s right to compensation in favor of the
employee.” Murray v. Labor Comm’n, 2012 UT App 33, ¶ 6, 271
P.3d 192, aff’d on other grounds, 2013 UT 38, 308 P.3d 461. But, it is
nevertheless the burden of the employee to establish all of the
elements of a claim for permanent total disability compensation.
See Utah Code Ann. § 34A-2-413(1)(b)–(c) (LexisNexis Supp.
2015). For us to hold otherwise would ignore the plain language
of Utah Code section 34A-2-413(1), which requires the employee
20141137-CA 16 2015 UT App 294Fogleman v. Labor Commission
to establish each element by a preponderance of the evidence.
See id.¶36 The Utah Supreme Court has stated,
The benefit of the doubt owing to workers’
compensation claimants comes at the back end of
the litigation—after the judge (or commission)
makes a run at resolving disputed questions of fact,
at clarifying gray areas of law, and at applying the
law to the facts of the case at hand. In the rare case
where that process yields genuine doubt—in a
dead heat without an apparent winner—that doubt
should be resolved in favor of coverage. But
otherwise the judge (or commission) is oath-bound
to rule in favor of the party whose case is strongest
under the law as applied to the facts. Such a
judgment cannot be abandoned on the mere
presence of doubt about the matter.
Jex v. Labor Comm’n, 2013 UT 40, ¶ 56, 306 P.3d 799. In other
words, before the tie can go to the runner, there has to be a tie. 10
10. We use this phrase cautiously. Apparently there is no rule
in the Major League Baseball Rulebook that expressly provides
that a tie actually goes to the runner. See Mark Dewdney,
“Come On, Blue, Tie Goes to the Runner!” No, It Does Not, Bleacher
Report (July 27, 2009), http://bleacherreport.com/articles/225160-
come-on-blue-tie-goes-to-the-runner-no-it-does-not (“‘A runner
acquires the right to an unoccupied base when he touches it
before he is out.’ The key word here is ‘before’. The instant that
ball touches the fielder’s mitt, if the runner was not there before
the ball, he must be called out—no leeway.”); David Wade, Inside
the Rules: Tie Goes to the Runner, The Hardball Times (Nov. 4,
2010), http://www.hardballtimes.com/tht-live/inside-the-rules-
tie-goes-to-the-runner/.
20141137-CA 17 2015 UT App 294Fogleman v. Labor Commission
¶37 The Board did not err by concluding that Fogleman had
not established an entitlement to permanent total disability
compensation under Utah Code section 34A-2-413(1)(b)–(c). And
because Fogleman did not establish the necessary elements of a
permanent total disability claim, she is not entitled to a “benefit
of the doubt.”
III. Fogleman’s Anxiety and Depression
¶38 Fogleman next argues that the Board “erred by failing to
specifically include an award of treatment for [her] industrially-
compounded depression and anxiety.” Essentially, she contends
that this treatment should have been awarded because the
medical panel found medical causation between the Work
Accident and her anxiety and depression. Whether medical
causation has been established is an issue of fact, which we
review for substantial evidence. Cook v. Labor Comm’n, 2013 UT
App 286, ¶ 10, 317 P.3d 464; see also Provo City v. Labor Comm’n,
2015 UT 32, ¶ 8, 345 P.3d 1242 (“[A] challenge to an
administrative agency’s finding of fact is reviewed for
substantial evidence.”). “To establish medical causation, a
‘claimant must show by evidence, opinion, or otherwise that the
stress, strain, or exertion required by his or her occupation led to
the resulting injury or disability.’” Cook, 2013 UT App 286, ¶ 12
(quoting Allen v. Industrial Comm’n, 729 P.2d 15, 27 (Utah 1986)).
And an employee “can generally recover benefits when an
industrial injury aggravates or ‘light[s] up’ a pre-existing
condition and has a causal connection with the subsequent onset
of symptoms.” Johnston v. Labor Comm’n, 2013 UT App 179, ¶ 23,
307 P.3d 615 (alteration in original) (quoting Virgin v. Board of
Review, 803 P.2d 1284, 1288 (Utah Ct. App. 1990)).
¶39 Fogleman first contends that the Board’s order can be
construed to grant her an award of future medical care for her
anxiety and depression. She also argues that, at a minimum, the
order’s wording “is ambiguous” and therefore we should
remand for further consideration.
20141137-CA 18 2015 UT App 294Fogleman v. Labor Commission
¶40 The Board ordered that Fogleman is “entitled to the
future medical care outlined by the medical panel for her work
injuries.” The Board expressly found, however, that “[w]hile
there is some evidence that [Fogleman] has other limitations
stemming from . . . her emotional state, the medical panel’s
report shows that such conditions are not medically causally
related to [the Work Accident].” Consequently, Fogleman’s
anxiety and depression were not included in the Board’s grant of
future medical care for her “work injuries.” Because the Board
specifically considered and denied Fogleman’s request for an
award of treatment for her anxiety and depression, we disagree
with Fogleman’s characterization of the Board’s order.
¶41 Fogleman also appears to argue that the Board erred in
concluding that the Work Accident did not cause or aggravate
her anxiety and depression. Fogleman seeks support for her
argument in the medical panel’s statement that her anxiety and
depression “compound her current concerns.” There are two
problems with Fogleman’s argument.
¶42 First, the Board expressly found that while “[Fogleman’s]
depression and anxiety hinder her ability to work,” “the medical
panel’s report shows that such conditions are not medically
causally related to [the Work Accident].” To successfully
challenge the Board’s factual findings, Fogleman must
“demonstrate how [the record] evidence is inadequate to
support the finding[s].” Swift Transp. v. Labor Comm’n, 2014 UT
App 104, ¶ 8, 326 P.3d 678. Fogleman has failed to make this
showing; she simply highlights a single statement in the medical
panel report that arguably contradicts the Board’s factual
findings. Fogleman does not include any reference to the
medical panel’s determination that “medical problems caused by
the industrial accident [had] stabilized” or its statement that she
“had received the appropriate treatment for [her] problems.”
Nor does she reference the panel’s statement, “It was not
expected that her problems would significantly change with
further intervention.” Because Fogleman has not rebutted the
20141137-CA 19 2015 UT App 294Fogleman v. Labor Commission
evidence supporting the Board’s ruling, she has failed to
demonstrate how that evidence is inadequate to support the
Board’s ruling.
¶43 Second, even if Fogleman could shoulder her burden on
appeal with a single comment from the medical panel report, the
statement upon which she relies does not support her argument.
As discussed above, an employee may recover costs for
treatment of a pre-existing condition if the employee presents
evidence that an industrial accident has aggravated or lit up a
pre-existing condition and that there is a causal connection
between the subsequent symptoms and the Work Accident. See
Johnston v. Labor Comm’n, 2013 UT App 179, ¶ 23, 307 P.3d 615.
But Fogleman has failed to make this showing. The only
evidence Fogleman raises to support her claim—the medical
panel’s statement regarding her anxiety and depression—seems
to reverse that causation. The panel stated that the anxiety and
depression “compound” her other concerns, not that the Work
Accident caused a flare up in her anxiety and depression.
¶44 Accordingly, we reject Fogleman’s contention that the
Board’s grant of costs for future medical care can be construed to
include an award of costs related to the treatment of her anxiety
and depression. Because the Board’s order is not ambiguous
regarding an award of future care for Fogleman’s anxiety and
depression, we reject her request to remand for further
clarification. We also reject Fogleman’s argument that the Board
erred by failing to award those costs.
CONCLUSION
¶45 We conclude that the Board did not err in denying
Fogleman’s petition for permanent total disability compensation
under Utah Code section 34A-2-413(1)(b). The Board did not err
in restricting its significant-impairment analysis, under
subsection 413(1)(b)(i), to those of Fogleman’s impairments that
20141137-CA 20 2015 UT App 294Fogleman v. Labor Commission
were found to be causally related to the Work Accident. The
Board’s conclusion that Fogleman’s impairments did not
constitute a significant impairment is supported by substantial
evidence. We reject Fogleman’s argument that the Board erred
by failing to “liberally construe[] [her claim] in favor of
awarding benefits.” The plain language of the statute requires
Fogleman to prove the elements of her claim by a preponderance
of the evidence and she has failed to do so. Finally, we conclude
that the Board specifically considered and rejected Fogleman’s
claim that she be granted an award of treatment for her anxiety
and depression, and we conclude that its decision is supported
by substantial evidence.
¶46 We decline to disturb the Board’s decision.
20141137-CA 21 2015 UT App 294