Danny's Drywall v. Labor Commission

2014 UT App 277
_________________________________________________________

THE UTAH COURT OF APPEALS

DANNY’S DRYWALL AND AMERICAN LIBERTY
INSURANCE CO.,
Petitioners,
v.
LABOR COMMISSION AND RAFAEL SUASTEGUI BERNAL,
Respondents.

Opinion
No. 20121077-CA
Filed November 20, 2014

Original Proceeding in this Court

Mark D. Dean, Kristy L. Bertelsen, and Scott R.
Taylor, Attorneys for Petitioners

Jaceson R. Maughan, Attorney for Respondent
Labor Commission

Aaron J. Prisbrey and Trevor C. Sanders, Attorneys
for Respondent Rafael Suastegui Bernal

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in
which JUDGES MICHELE M. CHRISTIANSEN and JOHN A. PEARCE
concurred.1

BENCH, Senior Judge:

¶1 Danny’s Drywall and its insurer, American Liberty
Insurance Co., (collectively, Employer) petition for judicial review
of a Labor Commission decision awarding permanent total

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud. Admin.
11-201(6).
 Danny’s Drywall v. Labor Commission

disability benefits to Rafael Suastegui Bernal (Claimant). We do not
disturb the Commission’s decision.

BACKGROUND

¶2 On February 17, 2009, while working as a drywall installer
for Danny’s Drywall, Claimant “fell 14 feet from a ladder and
scaffold.” He suffered extensive bone fractures in his face and right
hand, as well as tears in the muscles and cartilage of his right
shoulder. He also experienced back and neck pain. Following
treatment, Claimant reached medical stability from his hand and
shoulder injuries, but headaches and continued chronic pain in his
right jaw, neck, and lower back affected his activity level and
ability to sleep. He was eventually diagnosed with several torn and
bulging discs in his back.

¶3 In April 2010, Claimant filed an application for permanent
total disability benefits. After a hearing, the Administrative Law
Judge (the ALJ) decided that, due to the conflicting medical
evidence concerning Claimant’s medical and functional limitations,
a final determination on his eligibility for permanent total disability
benefits could not be made without an independent medical
review. As a result, in June 2011, the ALJ appointed a medical
panel, consisting of specialists in pain management and psychiatry.
In the medical panel referral letter, the ALJ informed the panel that
it was “bound by the Findings of Fact and Conclusions of Law
contained in my Interim Order.” As the ALJ explained, “[t]he facts
are the historical and other legal data regarding how the injury
occurred, dates and times, places, persons involved, and other
related information commonly thought of as the situational
circumstances surrounding the alleged injury.” The ALJ also stated,

If you discover additional facts which are not
contrary to the facts in the Findings of Fact and
Conclusions of Law contained in my Interim Order,
and you use them in your examination and
evaluation, it will be necessary to include them in

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your report and explain how the additional facts
affected your analysis and conclusions.

The ALJ then instructed the medical panel to answer the following
question: “What are [Claimant’s] permanent physical restrictions
as a result of injury from the industrial accident on 2/17/2009?” The
ALJ further instructed the panel to “address in your answer the
varying opinions in the medical record and relate [Claimant’s]
functional and medical capacity restrictions regarding his ability to
work an eight hour work day including limits on standing, sitting,
missing work days and breaks needed within the work day.”

¶4 The medical panel reviewed all relevant medical records,
considered the opinions of the parties’ experts, and conducted its
own examination of Claimant. The medical panel thereafter issued
a report detailing its conclusions regarding Claimant’s functional
and medical capacity restrictions related to the industrial accident.
The medical panel diagnosed Claimant with a number of “medical
conditions, as a direct result of the February 17, 2009 industrial
accident,” including traumatic brain injury and chronic pain. The
panel determined that Claimant had a variety of restrictions related
to lifting, sitting, and other activities. According to the panel, it was
unlikely that Claimant could be a productive worker for more than
four hours a day. Even then, the panel expected Claimant to
require additional time off due to medical care and periodic
exacerbations of his problems.

¶5 In response to the medical panel report, Employer hired a
physiatrist, Dr. Jeff Chung, to review and critique the report. In
preparing his analysis, Dr. Chung relied entirely on the panel
report and examined neither Claimant nor the underlying medical
records. Although Dr. Chung agreed with some of the medical
panel’s conclusions, Dr. Chung flatly disagreed with the panel’s
diagnoses and also opined that the panel’s report did not
adequately state a basis for some of its conclusions.

¶6 Employer filed an objection to the medical panel report,
citing Dr. Chung’s critique and arguing (1) that the panel violated
the charging order by evaluating matters not before it, (2) that the

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report was not based on reasonable medical probability, and (3)
that other substantial evidence supported a finding contrary to the
panel’s finding. The ALJ rejected all of Employer’s arguments and
admitted the medical panel report into the evidentiary record.
After considering all the evidence, the ALJ adopted the medical
panel’s opinion regarding Claimant’s functional and medical
capacity restrictions that were caused by the industrial accident
and ultimately determined that Claimant was eligible for
permanent total disability benefits.

¶7 Employer subsequently filed a motion for review with the
Commission, raising the same arguments as in its objection to the
medical panel report. Like the ALJ, the Commission rejected
Employer’s arguments. First, the Commission concluded that “the
medical panel did not exceed its authority, either in its personal
examination of [Claimant], its diagnosis of his medical problems,
or its assessment of whether those problems were caused by his
work accident.” Second, the Commission determined that, when
viewed as a whole, the medical panel report is based on the panel’s
assessment of medical probability. Third, the Commission reasoned
that the existence of contradictory evidence was not a sufficient
reason to disregard or exclude the medical panel report. The
Commission therefore rejected Employer’s challenges to the ALJ’s
decision and the medical panel report on which it was based, and
affirmed the ALJ’s decision. This petition for judicial review
followed.

ISSUES AND STANDARDS OF REVIEW

¶8 Employer first attacks the Commission’s adoption of the
medical panel report, contending that the panel disregarded the
charging order by evaluating medical causation, diagnosis, and
past and future medical care. In particular, Employer argues that
the ALJ did not refer all of those issues to the panel when the ALJ
asked the panel to evaluate Claimant’s “permanent physical
restrictions as a result of injury from the industrial accident.”
Because Employer’s argument challenges the propriety of the
Commission’s interpretation of the ALJ’s order, we review that

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interpretation for an abuse of discretion. See A & B Mech.
Contractors v. Labor Comm’n, 2013 UT App 230, ¶ 7, 311 P.3d 528.

¶9 Employer raises two other arguments in challenging the
Commission’s award of permanent total disability benefits to
Claimant, focusing on the Commission’s adoption of the medical
panel report. “Whether the commission correctly or incorrectly
denied benefits is a traditional mixed question of law and fact.” Jex
v. Labor Comm’n, 2013 UT 40, ¶ 15, 306 P.3d 799 (citation and
internal quotation marks omitted); see also Murray v. Labor Comm’n,
2013 UT 38, ¶ 33, 308 P.3d 461 (“[A] mixed question arises when an
agency . . . must apply a legal standard to a set of facts unique to a
particular case.” (citation and internal quotation marks omitted)).
“The standard of review we apply when reviewing a mixed
question can be either deferential or nondeferential . . . .” Murray,
2013 UT 38, ¶ 36. “Deference on a mixed question is warranted
when ‘the mixed finding is not “law-like” because it does not lend
itself to consistent resolution by a uniform body of appellate
precedent’ or ‘is “fact-like” because the [factfinder] is in a superior
position to decide it.’” Jex, 2013 UT 40, ¶ 15 (alteration in original)
(emphasis omitted) (quoting Murray, 2013 UT 38, ¶ 37).

¶10 Next, Employer argues that the ALJ’s Interim Order was not
sufficiently detailed and that the ALJ’s failure to provide adequate
findings of fact led the medical panel to evaluate matters beyond
the scope of its authority. “Whether an administrative agency’s
findings are adequate is a legal determination that requires no
deference.” Blair v. Labor Comm’n, 2011 UT App 248, ¶ 14, 262 P.3d
456.

¶11 Finally, Employer argues that the Commission erred in
adopting the medical panel report because, according to Employer,
other substantial evidence supports findings contrary to the
medical panel’s findings. “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.” Swift Transp. v. Labor Comm’n, 2014 UT App 104, ¶ 8, 326
P.3d 678 (citing Murray, 2013 UT 38, ¶ 19); see also Utah Code Ann.

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§ 63G-4-403(4)(g) (LexisNexis 2011) (authorizing an appellate court
to grant relief if an “agency action is based upon a determination
of fact . . . that is not supported by substantial evidence”). “In other
words, the [Commission’s] factual findings are accorded
substantial deference and will not be overturned if based on
substantial evidence, even if another conclusion from the evidence
is permissible.” Cook v. Labor Comm’n, 2013 UT App 286, ¶ 10, 317
P.3d 464 (citation and internal quotation marks omitted). “In
conducting a substantial evidence review, we do not reweigh the
evidence and independently choose which inferences we find to be
the most reasonable.” Becker v. Sunset City, 2013 UT 51, ¶ 21, 309
P.3d 223 (citation and internal quotation marks omitted). “Instead,
we defer to [a lower tribunal’s] findings because when reasonably
conflicting views arise, it is the [fact-finder’s] province to draw the
inferences and resolve these conflicts.” Id. (alterations in original)
(citation and internal quotation marks omitted).

ANALYSIS

I. Scope of the Medical Panel Report

¶12 Employer argues that the Commission abused its discretion
in adopting the medical panel report because the panel disregarded
the charging order by evaluating medical causation, diagnosis, and
past and future medical care. Employer contends that the ALJ’s
request that the panel evaluate Claimant’s “permanent physical
restrictions as a result of injury from the industrial accident” did
not authorize the panel to consider the issues of causation and
diagnosis.

¶13 Section 34A-2-601 of the Utah Code permits an
administrative law judge to refer the medical aspects of a case to a
medical panel. Utah Code Ann. § 34A-2-601(1)(a) (LexisNexis Supp.
2013). Pursuant to this section, an administrative law judge will
appoint a medical panel “where one or more significant medical
issues may be involved.” Utah Admin. Code R602-2-2(A).
Significant medical issues are involved when there are, inter alia,

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“[c]onflicting medical opinions related to a claim of permanent
total disability.” Id. R602-2-2(A)(4).

¶14 When a medical panel is convened, “[t]he role of the Medical
Panel is to ‘evaluat[e] medical evidence’ and ‘advis[e] an
administrative law judge with respect to the administrative law
judge’s ultimate fact-finding responsibility.’” Blair, 2011 UT App
248, ¶ 18 (alterations in original) (quoting Utah Code Ann. § 34A-2-
601(1)(d)(ii) (Supp. 2010)). “[T]he ALJ/Commission is always the
ultimate fact finder,” Speirs v. Southern Utah Univ., 2002 UT App
389, ¶ 10, 60 P.3d 42, and “[a]lthough an administrative law judge
is not bound by the panel’s report, she may base her findings and
decision on it,” Blair, 2011 UT App 248, ¶ 18 (citing Utah Code Ann.
§ 34A-2-601(2)(e)(i) (Supp. 2010)). Consequently, “[i]t is not unusual
for an administrative law judge and the Commission to adopt the
findings of a medical panel.” Id. ¶ 19 (citation and internal
quotation marks omitted). “However, it is the prerogative and the
duty of the Commission to consider not only the report of the
medical panel, but also all of the other evidence and to draw
whatever inferences and deductions fairly and reasonably could be
derived therefrom.” Id. (citation and internal quotation marks
omitted). Indeed, the medical panel’s “proper purpose is limited to
medical examination and diagnosis, the evidence of which is to be
considered by the Commission in arriving at its decision.”
Intermountain Health Care, Inc. v. Board of Review of the Indus.
Comm’n, 839 P.2d 841, 845 n.5 (Utah Ct. App. 1992) (citation and
internal quotation marks omitted).

¶15 In this case, the ALJ appointed a medical panel after first
determining that conflicting medical evidence concerning
Claimant’s medical and functional limitations required an
independent review of the medical evidence. The ALJ specifically
directed the medical panel to answer the following question: “What
are [Claimant’s] permanent physical restrictions as a result of
injury from the industrial accident on 2/17/2009?” In Employer’s
view, the ALJ’s instruction did not allow the panel to consider the
issues of causation, diagnosis, and past and future medical care. We
are not persuaded. Instead, we agree with the Commission that the
ALJ’s charge to the panel consisted of several components,

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including the identity of Claimant’s medical problems, the
likelihood that those problems were “a result of” the industrial
accident, and an assessment of the physical restrictions resulting
from those work-related injuries. (Internal quotation marks
omitted.) Similarly, we agree with the ALJ that it is difficult to
understand how the panel could perform its job without
addressing the physical restrictions and whether they were caused
by the injuries sustained in the industrial accident. Indeed,
Employer has not identified any statute or rule that the panel’s
analysis violated. Because the medical panel was responsive to the
various components of the ALJ’s charging order and because the
Commission was the ultimate factfinder, we conclude that the
Commission did not exceed its discretion in determining that the
causation and diagnosis of Claimant’s conditions were issues
properly before the medical panel.

II. Reasonable Medical Probability

¶16 Employer challenges the Commission’s conclusion that the
medical panel report was based on a reasonable medical
probability rather than on a medical possibility. In support of its
argument that the medical panel report is speculative and
uncertain, Employer points to the medical panel report’s use of the
words “may” and “possible” with regard to Claimant’s physical
conditions. Because this issue “does not lend itself to consistent
resolution by a uniform body of appellate precedent,” it is fact-like
and the Commission’s decision on the issue is entitled to deference.
See Jex v. Labor Comm’n, 2013 UT 40, ¶ 15, 306 P.3d 799 (citation and
internal quotation marks omitted).

¶17 Although Employer is correct that the medical panel report
uses the terms “may” and “possible” on occasion, the medical
panel begins its report of Claimant’s conditions with the
unequivocal statement that Claimant “has the following medical
conditions, as a direct result of the February 17, 2009 industrial
accident.” When the report is read as a whole, and in light of this
clear statement that Claimant “has the following medical
conditions,” it is evident that the medical panel’s opinion is based
on the panel’s assessment of medical probability. We therefore

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disagree with Employer that the Commission’s order should be set
aside.

III. The Medical Panel’s Examination

¶18 Employer claims that the Commission erroneously adopted
the medical panel report because the panel relied on statements
made during its examination of Claimant. When the panel
interviewed Claimant, Claimant’s family members helped him
answer questions and stated their observations of his symptoms.
Employer asserts that the medical panel should not have
considered these comments because they were outside the record.
Because the Commission is “in a superior position to decide” this
question, we defer to its determination. See id. (citation and internal
quotation marks omitted).

¶19 The Utah Code allows a medical panel to “conduct a study,”
“take an x-ray,” or “perform a test.” Utah Code Ann. § 34A-2-
601(2)(a)(i)–(iii) (LexisNexis Supp. 2013). Accordingly, “a medical
panel may conduct its own medical examination and review of the
medical record.” Certified Bldg. Maint. v. Labor Comm’n, 2012 UT
App 240, ¶ 12, 285 P.3d 831. This court has therefore allowed
Commission decisions to stand where the medical panel conducted
its own examination and interview of the claimant. See, e.g., id.
¶¶ 12–13 (“[T]he medical panel was provided the medical record
and was permitted to conduct its own physical examination and
interview of [the claimant].”).

¶20 Employer’s argument that the medical panel improperly
considered extra-record evidence relies on Utah Code section 63G-
4-208, which provides that in formal adjudicative proceedings, the
presiding officer shall issue an order with “findings of fact based
exclusively on the evidence of record in the adjudicative
proceedings or on facts officially noted.” Utah Code Ann. § 63G-4-
208(1)(a) (LexisNexis 2011). If we assume, without deciding, that
section 63G-4-208 applies to a medical panel report, the report in
this case was based on “the evidence of record in the adjudicative
proceedings or on facts officially noted.” See id. (emphasis added).
The medical panel report expressly noted information that

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originated from statements made by Claimant’s family members
during the panel’s examination. In doing so, the medical panel
complied with the ALJ’s instruction that it include in its report any
“additional facts which are not contrary to the facts in the Findings
of Fact and Conclusions of Law contained in [her] Interim Order”
that the panel used in its examination and evaluation. Furthermore,
medical panels routinely obtain information from interviews with
claimants, see, e.g., Certified Bldg. Maint., 2012 UT App 240,
¶¶ 12–13, and Employer has not persuaded us that the medical
panel in this case impermissibly gathered a medical history that
conflicted with the ALJ’s interim findings.

¶21 Employer nonetheless asserts that the medical panel’s
consideration of the family members’ statements violated its
statutory right to cross-examine witnesses. In support, Employer
cites section 63G-4-206 of the Utah Administrative Procedures Act
(the UAPA). This section provides that “in all formal adjudicative
proceedings, a hearing shall be conducted” during which all parties
are afforded “the opportunity to present evidence, argue, respond,
conduct cross-examination, and submit rebuttal evidence.” Utah
Code Ann. § 63G-4-206(1)(d) (LexisNexis 2011). Under the UAPA,
an “‘[a]djudicative proceeding’ means an agency action or
proceeding described in Section 63G-4-102.” Id. § 63G-4-103(1)(a).
Section 63G-4-102, in turn, does not say anything about a medical
panel’s examination. Id. § 63G-4-102 (LexisNexis Supp. 2013).
Employer relies on section 63G-4-206 for its claim that it was
entitled to cross-examine the family members, but by its plain
language, the section applies only to formal adjudicative
proceedings. Id. § 63G-4-206. Employer does not explain how a
medical panel’s examination of a claimant, conducted pursuant to
section 34A-2-601(2)(a), constitutes a formal adjudicative
proceeding during which an employer must be afforded an
opportunity to cross-examine all those present. Employer therefore
has not convinced us that section 63G-4-206 requires the ALJ and
the Commission to afford parties the opportunity to cross-examine
individuals present at a medical panel’s examination of a claimant.

¶22 Employer also contends that the Commission violated its
right to constitutional due process by permitting the medical panel

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to solicit information from Claimant’s family members without
giving Employer an opportunity to cross-examine them. Employer,
however, has not demonstrated that it sufficiently preserved the
issue during the proceedings before the Commission.

¶23 “[T]he preservation rule applies to every claim, including
constitutional questions . . . .” State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346. “We do not review an unpreserved issue unless
exceptional circumstances are present or the error was plain.” Utah
Chapter of Sierra Club v. Air Quality Bd., 2009 UT 76, ¶ 26, 226 P.3d
719. “[T]o preserve an issue for judicial review it must be raised in
a timely fashion before the agency, and be specifically raised with
supporting evidence or relevant legal authority.” Wintle-Butts v.
Career Serv. Review Office, 2013 UT App 187, ¶ 13 n.4, 307 P.3d 665
(citation and internal quotation marks omitted). “In short, a party
may not claim to have preserved an issue for appeal by merely
mentioning . . . an issue without introducing supporting evidence
or relevant legal authority.” Pratt v. Nelson, 2007 UT 41, ¶ 15, 164
P.3d 366 (omission in original) (citation and internal quotation
marks omitted).

¶24 In its motion for review before the Commission, Employer
stated that “[a]ny medical or factual information solicited from any
third party family member who attended the evaluation is in
violation of [Employer’s] right to state and federal due process and
violation of the Utah Administrative Procedures Act.” Although
Employer cited section 63G-4-206 as supporting authority for its
statutory right to cross-examine witnesses under the UAPA,
Employer failed to argue how its constitutional due process rights
were violated. As a result, the Commission did not have the
opportunity to address Employer’s constitutional argument.
Because Employer did not adequately preserve this issue before the
Commission, we decline to reach the merits of Employer’s
constitutional due process argument.

IV. Adequacy of the Interim Order

¶25 Next, Employer argues that the ALJ provided insufficient
findings of fact in her Interim Order. Specifically, Employer argues

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that the Interim Order “failed to identify for the panel those
conditions which were caused by the industrial accident” and that
this error prejudiced Employer because it caused the medical panel
to “stray[] beyond the Interim Order and erroneously mak[e] its
own factual findings regarding [the] issue[].”

¶26 In this case, the Interim Order did not contain findings as to
the nature of Claimant’s diagnoses, whether his various medical
problems were caused by his work accident, or what effect those
medical problems had on his ability to work. Employer argues that
these omissions render the ALJ’s Interim Order insufficiently
detailed. Employer, however, failed to preserve this argument
before the ALJ or the Commission. As discussed, an argument is
preserved for judicial review if it is has been “raised in a timely
fashion before the agency, and [has been] specifically raised with
supporting evidence or relevant legal authority.” Wintle-Butts, 2013
UT App 187, ¶ 13 n.4 (citation and internal quotation marks
omitted). In its reply memorandum in support of its objection to
the medical panel report, Employer stated, “In this case, the interim
order and charging instructions were insufficient to provide
guidance as to what conditions were causally related to the
industrial accident.” (Emphasis omitted.) Employer did not
support this claim with any relevant legal authority. Employer
made the same assertion, again without supporting legal authority,
in its reply to Claimant’s objection to the motion for review.
Employer therefore has not preserved this argument for judicial
review.

¶27 But even if we were to consider this argument, we could not
agree with Employer that the medical panel strayed beyond the
Interim Order, because the ALJ specifically asked the medical panel
to evaluate Claimant’s “permanent physical restrictions as a result
of injury from the industrial accident.” In other words, the medical
panel was instructed to make findings on “those conditions which
were caused by the industrial accident.” Any deficiency in the
ALJ’s factual findings would therefore be harmless. See Certified
Bldg. Maint. v. Labor Comm’n, 2012 UT App 240, ¶¶ 9–11, 285 P.3d
831 (employing the harmlessness standard when there was a claim

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that an ALJ’s interim findings were inadequate); Blair v. Labor
Comm’n, 2011 UT App 248, ¶ 16, 262 P.3d 456 (same).

V. Substantial Evidence

¶28 Employer argues that the Commission erred in adopting the
medical panel’s report “when there was other substantial evidence
supporting a finding contrary to the medical panel’s [finding].” In
support, Employer cites Dr. Chung’s analysis and other evidence
it claims conflicts with the panel’s findings regarding Claimant’s
functional and medical capacity.

¶29 As we have explained, “[a]n administrative law judge may
base [his or her] finding and decision on the report of . . . a medical
panel.” Utah Code Ann. § 34A-2-601(2)(e)(i)(A) (LexisNexis Supp.
2013). Nevertheless, “an administrative law judge is not bound by
a report . . . if other substantial conflicting evidence in the case
supports a contrary finding.” Id. § 34A-2-601(2)(e)(ii). Employer
points to this language referring to “other substantial conflicting
evidence” and asserts that “other substantial conflicting evidence”
exists in this case that supports a finding contrary to the panel’s
finding. This “other substantial conflicting evidence,” Employer
contends, precluded the ALJ from admitting and considering the
medical panel report.

¶30 The statutory language that an administrative law judge “is
not bound by a [medical panel] report . . . if other substantial
conflicting evidence . . . supports a contrary finding,” id., is more
pertinent to circumstances where the administrative law judge has
adopted a finding contrary to the medical panel report. See, e.g.,
Greyhound Lines, Inc. v. Wallace, 728 P.2d 1021, 1022–23 (Utah 1986)
(rejecting a plaintiff’s challenge to a finding where the Commission
chose to accept statements of one physician instead of the medical
panel report); Straub v. Labor Comm’n, 1999 UT App 192U, paras.
2–4 (refusing to grant relief where a petitioner argued that the
ALJ’s findings were contrary to those rendered by the medical
panel and that the ALJ was bound by the medical panel’s findings).
The presence of conflicting evidence does not negate the
administrative law judge’s discretion to base his or her findings on

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the medical panel report. See Utah Code Ann. § 34A-2-601(2)(e).
We agree with the Commission that the existence of conflicting
evidence is not “a sufficient reason to disregard a medical panel
report or exclude the report from the evidence.” This is especially
true in light of the fact that medical panels are used precisely
because there are conflicting medical opinions. See Utah Admin.
Code R602-2-2 (stating that a medical panel will be utilized by an
administrative law judge when a significant medical issue has been
shown by conflicting medical reports).

¶31 Employer’s argument that substantial evidence contradicts
the medical panel’s report boils down to an argument that “more
weight should have been given to the evidence in its favor.” See
Timpanogos Hosp. v. Labor Comm’n, 2011 UT App 106, ¶ 7, 251 P.3d
855. But this court may not reweigh the evidence because
“assigning such weights is the prerogative of the Commission.” Id.;
see also 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)). Employer has failed to
demonstrate that the Commission’s findings are not supported by
substantial evidence. See Swift Transp. v. Labor Comm’n, 2014 UT
App 104, ¶ 8, 326 P.3d 678 (“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.”). Accordingly, we will not set aside the Commission’s
findings.

VI. Attorney Fees

¶32 As a final matter, Claimant requests an award of attorney
fees and costs incurred on appeal pursuant to rules 33 and 34 of the
Utah Rules of Appellate Procedure. Claimant asserts that
Employer’s petition for judicial review is frivolous and that he is
therefore entitled to attorney fees and costs.

¶33 Rule 33 provides that if an appellate court determines that
an appeal is “either frivolous or for delay, it shall award just
damages, which may include single or double costs, as defined in

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Rule 34, and/or reasonable attorney fees, to the prevailing party.”
Utah R. App. P. 33(a). A frivolous appeal is “one that is not
grounded in fact, not warranted by existing law, or not based on
a good faith argument to extend, modify, or reverse existing law.”
Id. R. 33(b). “But the imposition of such a sanction is a serious
matter and only to be used in egregious cases, lest the threat of
such sanctions should chill litigants’ rights to appeal lower court
decisions.” Redd v. Hill, 2013 UT 35, ¶ 28, 304 P.3d 861. “Sanctions
are appropriate [only] for appeals obviously without merit, with
no reasonable likelihood of success, and which result in the delay
of a proper judgment.” Id. (citation and internal quotation marks
omitted). Claimant has not demonstrated that this is an “egregious
case[],” and we therefore conclude that Claimant is not entitled to
an award of attorney fees. See id. However, we grant Claimant’s
request for costs incurred on appeal because we are not disturbing
the Commission’s order. See Utah R. App. P. 34(a) (“[I]f a judgment
or order is affirmed, costs shall be taxed against appellant unless
otherwise ordered . . . .”); see also id. R. 34(e) (“In all other matters
before the court, including appeals from an agency, costs may be
allowed as in cases on appeal from a trial court.”).

CONCLUSION

¶34 For the foregoing reasons, we allow the Commission’s order
to stand.

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