2015 UT App 310
THE UTAH COURT OF APPEALS
SOCORRO GUZMAN,
Petitioner,
v.
LABOR COMMISSION, CIRCLE FOUR FARMS, AND INDEMNITY
INSURANCE COMPANY OF NORTH AMERICA,
Respondents.
Memorandum Decision
No. 20140662-CA
Filed December 31, 2015
Original Proceeding in this Court
Loren M. Lambert, Attorney for Petitioner
Jaceson R. Maughan, Attorney for Respondent
Labor Commission
Eric K. Jenkins and Kristen C. Kiburtz, Attorneys for
Respondents Circle Four Farms and Indemnity
Insurance Company of North America
JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGE JAMES Z. DAVIS concurred.1 JUDGE JOHN A. PEARCE
concurred in the result.2
1. Judge James Z. Davis began his work on this case as a member
of the Utah Court of Appeals. He retired from the court on
November 16, 2015, but thereafter became a Senior Judge. He
completed his work on the case, sitting by special assignment as
authorized by law. See generally Utah R. Jud. Admin 11-201(6).
2. Judge John A. Pearce participated in this case as a member of
the Utah Court of Appeals. He became a member of the Utah
Supreme Court on December 17, 2015, before this decision
issued.
Guzman v. Labor Commission
TOOMEY, Judge:
¶1 Socorro Guzman seeks judicial review of the Utah Labor
Commission’s Appeals Board’s (the Board) denial of permanent
total disability benefits. Because the Board erred in determining
that Guzman’s impairments do not limit his ability to do basic
work activities, we set aside its order and remand for further
proceedings consistent with this decision.
BACKGROUND
¶2 In 2008, while working for Circle Four Farms, Guzman
was ‚forcefully butted‛ by a three- to four-hundred-pound boar.
He was thrown and landed on the cement floor of the pen,
injuring his lower back and right hip. Although Guzman
continued to work after the accident, his low-back pain
worsened and he ultimately stopped working in July 2009. He
has not been gainfully employed since.
¶3 In 2011, Guzman applied for permanent total disability
benefits under Utah’s Workers’ Compensation Act. To establish
entitlement to these benefits, an employee must demonstrate, by
a preponderance of the evidence, that ‚(i) the employee
sustained a significant impairment or combination of
impairments as a result of the industrial accident . . . ; (ii) the
employee has a permanent, total disability; and (iii) the
industrial accident . . . is the direct cause of the employee’s
permanent total disability.‛ Utah Code Ann. § 34A-2-413(1)(b)
(LexisNexis 2011). Further, to establish the existence of a
permanent total disability under subsection 34A-2-413(1)(b)(ii),
the employee must also prove, among other things, that
(ii) the employee has an impairment or
combination of impairments that limit the
employee’s ability to do basic work activities . . .
[and]
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(iv) the employee cannot perform other work
reasonably available . . . .
Id. § 34A-2-413(1)(c).
¶4 Guzman sought evaluation of and treatment for his low-
back pain. In support of his application for benefits, he included
medical records, physical therapy notes, and a vocational
assessment from Dr. Dina Galli, a certified rehabilitation
counselor. As the Board indicated, one doctor determined that,
because of his impairments, Guzman would be ‚‘unable to go
back to work.’‛ Another doctor later determined that he could
return to work but not without modification to his job duties.
Furthermore, Dr. Galli opined that Guzman is no longer capable
of working in his past jobs, has no transferable skills, and is not
likely to be able to perform other work reasonably available
because of his age, limited education, and limited ability to
communicate in English.
¶5 In adjudicating Guzman’s claim, an Administrative Law
Judge (ALJ) referred the medical aspects of the case to an
independent medical panel. In response, the panel briefly3
answered the ALJ’s three specific questions. In particular, it
determined that ‚the principle condition caused by the
industrial accident . . . is a herniated disc.‛ It noted that there
was medical evidence that other impairments had a bearing on
Guzman’s overall functional capacity, including ‚chronic
cervical pain, bilateral shoulder pain, and generalized
deconditioning.‛ The panel then set forth some restrictions
related to his condition. Specifically, it determined that Guzman
could not lift more than forty pounds on an occasional basis;
3. The substantive portion of the panel’s report is three
paragraphs long, two of which are single-sentence responses to
the ALJ’s questions.
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Guzman v. Labor Commission
could not lift more than twenty to thirty pounds frequently; and
could not repetitively bend, stoop, or squat. It also determined
he was limited in his ability to perform overhead work or
forceful work with his arms above the level of his shoulders or
away from his body. Finally, in response to the ALJ’s question
about whether Guzman was able to work eight-hour days for
forty hours per week, the panel answered, ‚Guzman is capable
of working the aforesaid hours each day/week in a light to
medium work capacity.‛
¶6 Although the ALJ approved Guzman’s claim for
permanent total disability benefits, the Board reversed that
decision. In analyzing whether Guzman met his burden to
demonstrate permanent total disability, the Board concluded
that, although his impairments prevent him from performing the
essential functions of the work activities for which he has been
qualified, see Utah Code Ann. § 34A-2-413(1)(c)(iii), his
impairments do not limit his ability to do basic work activities,
id. § 34A-2-413(1)(c)(ii). Based in part on that conclusion, the
Board went beyond the findings in the medical panel’s report
and also determined that Guzman’s impairments do not prevent
him from performing other work reasonably available.4 Id.
§ 34A-2-413(1)(c)(iv).
ANALYSIS
¶7 On judicial review of the Board’s decision, Guzman
argues the Board applied incorrect legal standards when it
concluded he had not met his burden to establish the existence
of a permanent total disability. He also argues the Board’s
4. The Board’s order stated, ‚*t+he medical panel’s conclusion
that Mr. Guzman can still work full time in a light to medium
work setting also indicates that he can work in a variety of
employment settings.‛
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determinations are not supported by the evidence in the record.
We review the Board’s application and interpretation of the law
for correctness, Prows v. Labor Comm’n, 2014 UT App 196, ¶ 6,
333 P.3d 1261, but we will not disturb its factual findings unless
the petitioner demonstrates that a finding is not supported by
substantial evidence based on the record as a whole, see Murray
v. Labor Comm’n, 2013 UT 38, ¶ 19, 308 P.3d 461. See also Utah
Code Ann. § 63G-4-403(4)(g) (LexisNexis 2014) (requiring an
appellate court to grant relief in an appeal of agency action if an
agency’s finding of fact ‚is not supported by substantial
evidence‛). ‚An administrative law decision meets the
substantial evidence test when a reasonable mind might accept
as adequate the evidence supporting the decision.‛ Martinez v.
Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints,
2007 UT 42, ¶ 35, 164 P.3d 384 (citation and internal quotation
marks omitted).
¶8 As a threshold matter, the respondents contend that
because Guzman did not provide a transcript of the evidentiary
hearing held before the ALJ, the record is inadequate and this
court therefore ‚cannot properly review the evidence below.‛
We disagree. Although we recognize that failure to include the
transcript of the hearing puts Guzman at a tactical disadvantage
because he cannot adequately challenge all of the factual
findings, there is enough evidence in the record to decide the
major issues in this case. Cf. State v. Nielsen, 2014 UT 10, ¶¶ 42–
44, 326 P.3d 645 (reiterating that the appellate court’s focus
should be on the merits of a case, even considering some
arguable deficiency in the appellant’s duty of marshaling).
Indeed, to the extent that Guzman challenges the Board’s factual
findings, he has provided the pertinent medical records, the
ALJ’s and the Board’s orders, the medical panel’s report, and his
vocational assessment. Accordingly, considering the record as a
whole, we review Guzman’s arguments.
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¶9 Guzman first contends the Board erred in concluding his
impairments do not limit his ability to perform basic work
activities. Specifically, he argues that ‚while *his impairments+
do not prove a complete inability to perform basic work
activities, they do demonstrate, as a matter of law, that [his]
ability to perform these activities is limited.‛ (Internal quotation
marks omitted.)
¶10 Section 34A-2-413 requires Guzman to demonstrate that
his work-related injuries ‚limit *his+ ability to do basic work
activities.‛ Utah Code Ann. § 34A-2-413(1)(c)(ii) (LexisNexis
2011). Based on the plain language of the statute, to satisfy this
element, ‚*t+he employee need not prove a complete inability to
perform basic work activities, only that the employee’s ability to
perform these activities is limited.‛ Provo City v. Labor Comm’n,
2015 UT 32, ¶ 28, 345 P.3d 1242.
¶11 After pointing out that the medical evidence outlines a
‚clear set‛ of restrictions caused by Guzman’s impairments, the
Board concluded that he retains a ‚reasonable amount of strength,
flexibility and endurance‛ and that his ‚impairments do not
reasonably limit his ability to work in a broad range of jobs.‛
(Emphasis added.) But, as we recently discussed in Oliver v.
Labor Commission,
[T]he Workers’ Compensation Act does not direct
the [Board] to determine whether the claimant has
reasonable levels of functionality or a reasonable
ability to perform basic work activities. Rather, it
requires the [Board] to consider whether a
claimant’s ability to perform these activities is
limited. Thus, evaluating whether a claimant
retains a reasonable degree of physical and mental
functionality notwithstanding a disability has no
place in this analysis because the basic-work-
activities analysis begins and ends with evaluating
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whether the claimant’s disability negatively affects
the ability to perform the basic work activities
commonly required in employment.
2015 UT App 225, ¶ 11, 359 P.3d 684 (citations and internal
quotation marks omitted), petition for cert. filed, Oct. 27, 2015 (No.
20150889); accord Quast v. Labor Comm’n, 2015 UT App 267, ¶¶ 7–
8. By applying the qualifying term ‚reasonably‛ or ‚reasonable‛
in evaluating Guzman’s limitations, the Board improperly
imposed a higher burden on Guzman than the statute dictates;
‚it requires him to demonstrate a limitation and then show it is
reasonable.‛ Oliver, 2015 UT App 225, ¶ 11. We therefore
conclude the Board incorrectly applied the governing legal
standard.
¶12 Next, Guzman contends the Board misapplied the law
concerning the functions a medical panel may perform. In
particular, he argues the Board inappropriately allowed the
medical panel to make findings regarding the vocational issue—
whether Guzman can perform other work reasonably available.
¶13 Section 34A-2-413 requires Guzman to demonstrate that
he ‚cannot perform other work reasonably available, taking
into consideration [his]: (A) age; (B) education; (C) past
work experience; (D) medical capacity; and (E) residual
functional capacity.‛ Utah Code Ann. § 34A-2-413(1)(c)(iv). ‚A
determination of what constitutes other work reasonably
available necessarily requires the [Board] to consider various
factors, which the [Board] categorizes in two ways: (1) the
personal, physical characteristics of the injured employee, and
(2) the prospective job market.‛ LPI Servs. v. Labor Comm’n, 2007
UT App 375, ¶ 17, 173 P.3d 858, aff’d sub nom. LPI Servs. v. McGee,
2009 UT 41, 215 P.3d 135.
¶14 In its order, the Board recognized that Guzman’s ‚age
and limited education appear to be factors against his ability to
perform other work‛ and that he is unlikely to be able to
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perform the ‚heavy agricultural work‛ he has performed for
most of his life. But based on the medical panel’s three-
paragraph report, which did not even address whether Guzman
is able to perform other work reasonably available, the Board
found that Guzman maintained ‚sufficient medical and
functional capacity‛ to perform such work.
¶15 The Board may rely on the medical panel’s opinion for
only those matters that are within the medical panel’s
expertise—medical diagnosis and restrictions. See Jensen v.
United States Fuel Co., 424 P.2d 440, 442 (Utah 1967) (explaining
that a medical panel’s ‚proper purpose is limited to medical
examination and diagnosis‛—those matters particularly within
the scope of its expertise); see also Utah Code Ann. § 34A-2-
601(1)(a) (LexisNexis 2011) (providing that the Board may only
refer ‚the medical aspects of a case‛ to a medical panel
appointed by an administrative law judge); Utah Admin. Code
R602-2-2(A) (explaining that a medical panel will be utilized
‚where one or more significant medical issues may be
involved‛). But ‚*i+t is the province of the Board, as the finder of
fact, to view all the evidence submitted as a whole and then
make an appropriate determination.‛ Johnston v. Labor Comm’n,
2013 UT App 179, ¶ 24, 307 P.3d 615.
¶16 Instead, the Board here relied upon the medical panel’s
determination that Guzman can work full time in a light to
medium work capacity as a basis for determining that ‚he can
work in a variety of employment settings.‛ It opined that the
panel’s three-paragraph ‚report is more convincing than the
other various physician notes.‛
¶17 We are also troubled by the Board’s failure to give
Guzman’s six-page vocational assessment ‚much weight in light
of the fact that Ms. Galli did not testify at the hearing where she
could explain her conclusions and be questioned.‛ This flawed
reasoning implies that evidentiary reports only carry value if the
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author of those reports can be questioned. But, under this logic,
the medical panel’s report—from which the Board based most of
its findings—would also carry little weight because there is no
indication that the panel members were questioned at the
hearing.
¶18 Furthermore, the Board’s functional capacity analysis is
riddled with inconsistencies that call its findings into question.
For example, based on the medical panel’s findings, the Board
determined that ‚[t]he limitations from Mr. Guzman’s
impairments may hinder his ability to do specific tasks, such as
frequent reaching or repetitive bending.‛ But in the very next
sentence, it asserts ‚Mr. Guzman can bend, stoop and squat
frequently.‛ Finally, nothing in the Board’s order suggests that it
even considered evidence regarding the prospective job market.
¶19 The Board’s reliance on the medical panel’s three-
paragraph report above all the other evidence, and its
contradictory findings, leave doubt about whether ‚a reasonable
mind might accept as adequate the evidence supporting the
decision,‛ particularly with respect to the Board’s conclusion
that Guzman failed to demonstrate that he cannot perform
other work reasonably available. See Martinez v. Media-Paymaster
Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 35,
164 P.3d 384 (citation and internal quotation marks omitted). The
most pertinent evidence before the Board on this point was Dr.
Galli’s report—evidence which the Board largely ignored.
CONCLUSION
¶20 In sum, we conclude the Board did not correctly interpret
Utah Code subsection 34A-2-413(1)(c)(ii). We therefore set aside
its order and, pursuant to Utah Code subsection 63G-4-
404(1)(b)(v), remand the case to the Board for further
proceedings. We further instruct the Board to make a
determination as to Guzman’s permanent total disability claim
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consistent with this opinion by making factual findings based on
the appropriate legal standards and based on the evidence as a
whole, including the medical panel’s report, Guzman’s medical
records, his testimony, and the vocational assessment conducted
by Dr. Galli.
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