Oliver v. Labor Commission

2015 UT App 225

THE UTAH COURT OF APPEALS

MARK L. OLIVER,
Petitioner,
v.
LABOR COMMISSION, WORKERS’ COMPENSATION FUND,
AND D. TYREE BULLOCH CONSTRUCTION,
Respondents.

Memorandum Decision
No. 20140624-CA
Filed September 3, 2015

Original Proceeding in this Court

Virginius Dabney and Timothy P. Daniels, Attorneys
for Petitioner
Floyd W. Holm, Attorney for Respondents Workers’
Compensation Fund and D. Tyree
Bulloch Construction
Jaceson R. Maughan, Attorney for Respondent
Labor Commission

JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGE GREGORY K. ORME concurred. JUDGE JOHN A.
PEARCE concurred in the result.

TOOMEY, Judge:

¶1 Mark L. Oliver seeks judicial review of the Utah Labor
Commission’s denial of permanent total disability benefits
relating to an industrial accident. Because the Commission erred
in its determination that Oliver’s work-related injuries do not
limit his ability to do basic work activities and do not prevent
him from performing the essential functions of the job he was
qualified for at the time of his accident, we set aside its order and
 Oliver v. Labor Commission

allow the Administrative Law Judge’s order, granting benefits to
Oliver, to stand.

¶2 In March 2000, while working for D. Tyree Bulloch
Construction (Bulloch) as a construction supervisor, Oliver fell
eight to ten feet onto a concrete floor and injured his pelvis,
lower back, and left leg. Until the accident, Oliver mostly
specialized in concrete work and other hands-on heavy
construction tasks for which he was required to use ladders,
work long shifts, kneel for hours at a time, lift fifty pounds, and
push wheelbarrows full of concrete. He also worked in
landscaping. In 2007, after the accident, Oliver worked briefly as
a food delivery truck driver. Because of pain and medical
problems caused by the work-related accident, he quit the
delivery-truck-driving job and has not been gainfully employed
since.

¶3 Oliver was awarded Social Security Disability benefits,
and he also applied for permanent total disability benefits under
the Utah Workers’ Compensation Act. To establish entitlement
to permanent total disability 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 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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 Oliver v. Labor Commission

(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 . . . .

Id. § 34A-2-413(1)(c).

¶4 In connection with Oliver’s workers’ compensation claim,
the parties stipulated that he sustained his ‚injuries by accident
arising out of and in the course of employment‛ at Bulloch; that
he has a ‚42% whole person permanent partial impairment . . .
representing significant impairment in function‛; and that he has
not worked ‚meaningfully in any line of substantial, gainful
employment since July 6, 2007.‛

¶5 An Administrative Law Judge (the ALJ) referred the
medical aspects of Oliver’s claim to an impartial medical panel
to help determine whether he has a permanent total disability.
After reviewing Oliver’s medical records and evaluating him,
the medical panel concluded that the work-related accident
caused his pelvic, lower-back, and left-leg problems and then
outlined the parameters of his abilities. Generally, the panel
determined that Oliver ‚may function at a medium duty job,‛
and ‚may participate in basic work activities,‛ but may have
limitations in his functional capacity. In particular, the panel
opined that Oliver ‚may require . . . unscheduled breaks
throughout the work day‛ and ‚may not be able to stand
continuously more than [sixty] minutes and would require [five
to ten minutes] of elevation of his legs for each [sixty minutes] of
dependant *sic+ (standing) use of the legs.‛

¶6 The ALJ ultimately approved Oliver’s claim, finding that
‚the medical evidence as a whole supports a finding for
continued treatment of Mr. Oliver’s left leg pain and swelling.‛

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 Oliver v. Labor Commission

In her analysis, the ALJ noted that ‚*n+o one medical opinion
was compelling. . . . The medical opinions varied regarding
strength impairments . . . [but t]he medical evidence is consistent
that he needs to elevate his legs and that his ability to sit and
stand without leg elevation is substantially impaired.‛ The ALJ
found that the medical evidence showed Oliver ‚is limited in his
ability to do basic work activity‛ under Utah Code subsection
34A-2-413(1)(c)(ii), noting that he ‚need not show he is incapable
of doing basic work activity only that he is limited in his ability
to do basic work activity.‛ The ALJ also concluded, under
subsection 34A-2-413(1)(c)(iii), that Oliver’s impairments
prevented him from performing the heavy-duty labor required
for his previous construction work and the medium- to heavy-
duty labor as a delivery truck driver. She found that Oliver’s
need to elevate his leg would require special accommodations
that are not feasible in a construction setting or while driving a
delivery truck.

¶7 Bulloch and the Workers’ Compensation Fund (WCF)
moved for review of the ALJ’s decision. Giving no deference to
the ALJ’s findings, the Commission reversed the award of
permanent total disability compensation and denied Oliver’s
claim for benefits. Although it acknowledged that the record
shows his ‚conditions preclude Mr. Oliver from performing the
heavy labor he has done for most of his adult life,‛ the
Commission concluded Oliver failed to demonstrate that his
impairments limited his ability to do basic work activities or
prevent him from performing the essential functions of his
briefly held job as a delivery truck driver.

¶8 On judicial review of the Commission’s decision, Oliver
argues the Commission applied incorrect legal standards when it
concluded he had not met his burden to establish the existence
of a permanent total disability and the Commission’s
determinations are not supported by the evidence in the record.
We review the Commission’s application and interpretation of
the law for correctness, Prows v. Labor Comm’n, 2014 UT App 196,

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 Oliver v. Labor Commission

¶ 6, 333 P.3d 1261, but we will not disturb its factual findings
unless Oliver 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 2011) (permitting an
appellate court to grant relief if an agency’s finding of fact ‚is
not supported by substantial evidence‛). ‚*W+hen the plain
meaning of the statute can be discerned from its language, no
other interpretive tools are needed.‛ Prows, 2014 UT App 196,
¶ 9 (citation and internal quotation marks omitted). Then, ‚*a]n
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).

Limit on Basic Work Activities

¶9 Oliver contends the Commission erred in concluding his
impairment did not limit his ability to perform basic work
activities. He argues the Commission erroneously interpreted
the word ‚limit‛ and that this interpretation led it to err by
concluding that his impairments do not limit his ability to
perform basic work activities.1 Relying on a well-known
dictionary, he suggests the statute’s plain language merely
requires him to ‚show that his impairments ‘reduced in quantity
or extent’ his ability to perform basic work activities.‛ Bulloch

1. Although Oliver frames this argument as the Commission’s
erroneous interpretation of the word ‚limit,‛ based on the
substance of his argument we read it as a more general challenge
to the Commission’s interpretation of the statute.

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 Oliver v. Labor Commission

and WCF argue Oliver’s interpretation would render the statute
meaningless because ‚everyone would meet *his+ criterion.‛2

¶10 Section 34A-2-413 requires Oliver 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). ‚In defining what constitutes basic work activities, we
look to identical language used in federal social security law,
which defines ‘basic work activities’ as ‘the abilities and
aptitudes necessary to do most jobs.’‛ Provo City v. Labor
Comm’n, 2015 UT 32, ¶ 28, 345 P.3d 1242 (quoting 20 C.F.R.
§ 404.1521(b) (2012)). Examples include walking, standing,
sitting, coping with changes in work settings, and carrying out
instructions. See 20 C.F.R. § 404.1521(b). Based on the plain
language of the statute, to satisfy the 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, 2015 UT 32, ¶ 28.

¶11 In the order reversing the ALJ, the Commission
acknowledged Oliver’s physical limitations but determined he

2. Bulloch and WCF also briefly assert that Oliver has failed to
marshal the evidence that supports his arguments. ‚The
supreme court explained that marshaling remains an important
part of successfully challenging factual findings on appeal
because ‘a party challenging a factual finding or sufficiency of
the evidence to support a verdict will almost certainly fail to
carry its burden of persuasion on appeal if it fails to marshal.’‛
Tobler v. Tobler, 2014 UT App 239, ¶ 14, 337 P.3d 296 (quoting
State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645). ‚But the supreme
court also instructed appellees and appellate courts alike to
address the merits of an appellant’s arguments without relying
on marshaling as a ‘stand-alone basis’ for rejecting claims on
appeal.‛ Id. (quoting Nielsen, 2014 UT 10, ¶ 44). Accordingly, we
address the merits of Oliver’s arguments.

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 Oliver v. Labor Commission

did not satisfy this element because ‚*a+lthough the panel . . .
described that Mr. Oliver may require unscheduled breaks and
[he] may be absent from work occasionally, such indefinite
circumstances do not present a reasonable limitation on Mr.
Oliver’s ability to do basic work activities in light of the panel’s
description that he may work, remain at work, and cope with
changes at work.‛3 (Emphasis added.) But the Workers’

3. According to the Commission, the basic-work-activities
analysis requires it to consider whether Oliver has a ‚reasonable
degree of flexibility, strength, endurance, mental capacity[,] and
ability to communicate.‛ By utilizing these factors in its analysis,
it appears the Commission’s interpretation of subsection 34A-2-
413(1)(c)(ii) conflates what is required by the plain language of
Utah’s Workers’ Compensation Act with the analysis required to
evaluate residual functional capacity in social security claims.
Compare Utah Code Ann. § 34A-2-413(1)(c)(ii) (LexisNexis 2011),
with 20 C.F.R. § 404.1520 (2015). Unlike Utah’s Workers’
Compensation Act, which requires the claimant to show that a
disability limits his or her ability to perform basic work
activities, Utah Code Ann. § 34A-2-413(1)(c)(ii), social security
regulations require the evaluator to conduct an administrative
residual functional capacity assessment to consider the
claimant’s abilities to perform work activities despite the
claimant’s limitations, see 20 C.F.R. § 404.1520. This assessment
requires evaluation of both the claimant’s non-exertional and
exertional limitations, such as limitations in flexibility, strength,
endurance, mental capacity, and ability to communicate. See id.
§§ 404.1520, 404.1545, 404.1569a. But subsection 34A-2-
413(1)(c)(ii) does not direct the Commission to consider the
claimant’s residual functional capacity. Indeed, the Act permits
consideration of the claimant’s residual functional capacity only
under subsection 34A-2-413(1)(c)(iv) when determining whether
the claimant can perform other work reasonably available.

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 Oliver v. Labor Commission

Compensation Act does not direct the Commission to determine
whether the claimant has reasonable levels of functionality or a
reasonable ability to perform basic work activities. See Utah
Code Ann. § 34A-2-413(1)(c)(ii). Rather, it requires the
Commission to consider whether a claimant’s ‚ability to perform
these activities is limited.‛ Provo City, 2015 UT 32, ¶ 28. 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 whether the claimant’s
disability ‚negatively affects‛ the ability to perform the basic
work activities commonly required in employment. Id. ¶¶ 28–29.
The Commission’s use of the qualifying term ‚reasonable‛
imposes a higher burden on Oliver than the statute dictates; it
requires him to demonstrate a limitation and then show it is
reasonable. Accordingly, we conclude the Commission
incorrectly construed the governing legal standard.

¶12 Applying the correct legal standard, we conclude the
Commission’s decision is not supported by substantial evidence.
Bulloch and WCF assert the evidence demonstrating Oliver is
able to perform basic work activities supports the Commission’s
conclusion that he is not limited in his ability to do those
activities. Specifically, they point to the medical panel’s
conclusion that Oliver can perform medium-duty work and
‚may participate in basic work activities.‛ But they also
acknowledge the medical panel subsequently determined that
Oliver’s ability to do those activities may be limited.4

4. Notably, the Commission found ‚the medical panel’s
conclusions regarding Mr. Oliver’s restrictions and capacity to
work to be persuasive,‛ but discredited its opinion of Oliver’s
possible limitations as being too indefinite, and suggested his
need to ‚elevate his legs for 5-10 minutes for every hour he is
required to stand‛ could be satisfied during his personal breaks,
(continued…)

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 Oliver v. Labor Commission

¶13 A fair reading of the record as a whole establishes that
Oliver was likely capable of performing basic work activities.
Some evidence even demonstrates he was capable of performing
strenuous activities, such as yard work, staining a deck, and
removing a fallen tree. But no evidence indicated he may
perform those activities without some limitation. Most of the
medical evaluators agreed that Oliver was limited to medium-
duty work ‚with considerations for the venous obstruction
problems.‛ And all evaluators suggested that his ability to stand
or walk was restricted in one way or another because of the
phlebotic syndrome, which causes discomfort and requires
frequent elevation of his leg. Even Oliver’s most critical
evaluator, who concluded that he was capable of just about any
activity, suggested Oliver’s pain would limit him to sedentary or
light-duty activities. Any opinion that Oliver may be capable of
performing basic work activities is countered with evidence to
the contrary and is markedly outweighed by evidence that
suggests his ability to perform such activities would be limited.
Thus, we conclude that no reasonable mind would accept as
adequate the evidence supporting the Commission’s decision on
this element. Accordingly, because it is not supported by

(…continued)
lunch breaks, or after work. Nevertheless, the Commission did
not give the panel’s assessment that Oliver ‚may require the
need for unscheduled breaks throughout the work day . . . [and]
may be absent from work because of left leg swelling and pain on
an occasional basis‛ the same treatment as the panel’s
determination that Oliver ‚may participate in basic work
activities.‛ (Emphases added.) Instead, where the Commission
expressly ‚read[] the panel’s opinion on this issue to mean that
Mr. Oliver is capable of‛ performing basic work activities, it
interpreted the panel’s assessment that Oliver may have
limitations in his ability to work as a remote possibility.
(Emphasis added.)

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 Oliver v. Labor Commission

substantial evidence, we set aside the Commission’s
determination that Oliver’s impairments did not limit his ability
to perform basic work activities.

Essential Functions of a Job For Which an Employee Is Qualified

¶14 Oliver next argues the Commission erred in concluding
he could perform the essential function of the work activities for
which he was qualified until the time of the accident. He argues
the evidence does not support the Commission’s determination,
and in his reply brief, contends the Commission may only
consider work he ‚actually performed prior to the accident.‛
Bulloch and WCF’s position is that substantial evidence supports
the finding that Oliver is able to perform the essential functions
of his work as a delivery truck driver.

¶15 Section 34A-2-413 requires Oliver to show that his
impairments prevent him ‚from performing the essential
functions of the work activities for which [he] has been qualified
until the time of the industrial accident.‛ Utah Code Ann. § 34A-
2-413(1)(c)(iii) (LexisNexis 2011). In the order reversing the ALJ,
the Commission ‚conclude[d] Mr. Oliver has not shown that his
work-related condition prevents him from performing the
essential functions of the delivery driver position for which he
was qualified at the time of the accident.‛ It explained that
although Oliver never worked as a driver before the accident, he
was qualified to do that type of work because he obtained that
position based on the qualifications he had at the time of the
accident.

¶16 The operative term in the statute is ‚qualified,‛ which is
not expressly defined. We interpret statutes according to the
plain meaning of their text—the meaning the words ‚would
have to a reasonable person familiar with the usage and context
of the language in question.‛ Olsen v. Eagle Mountain City, 2011
UT 10, ¶ 9, 248 P.3d 465. This principle is difficult to apply when
the plain meaning of the contested language has more than one

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 Oliver v. Labor Commission

conceivable construction. Id. Accordingly, ‚*t+he starting point
for discerning such meaning is the dictionary‛ because it
‚catalog*s+ a range of possible meanings that a statutory term
may bear.‛ Hi-Country Prop. Rights Group v. Emmer, 2013 UT 33,
¶ 19, 304 P.3d 851.

¶17 A ‚qualified‛ person is ‚competent or eligible,‛ The
American Heritage Dictionary 685 (4th ed. 2001), has ‚complied
with the specific requirements or precedent conditions,‛
Webster’s Third New Int’l Dictionary 1858 (1966), or possesses the
qualities necessary for a position, Black’s Law Dictionary 1360 (9th
ed. 2009). These definitions suggest that being qualified requires
something more than a mere ability to perform in a particular
position. Rather, being qualified for a position requires a certain
level of training, experience, competence, ability, and validation
which includes the physical and mental skills required to
perform the work. In other words, although ability is necessary,
it is not sufficient to constitute being qualified to do a job.

¶18 Under the appropriate legal standard, it is unclear from
the record that Oliver was qualified to perform the essential
functions of a delivery truck driver at the time of the accident.
Oliver got the job as a delivery truck driver only after he became
unable to work in construction, approximately seven years after
the accident. In making its decision, the Commission relied
exclusively on the parties’ stipulation that Oliver got the job as a
delivery truck driver based on the ‚qualifications‛ he had at the
time of the accident. But looking at the record as a whole, aside
from the mere ability to drive a truck, it is not clear that Oliver
was qualified to drive a delivery truck or obtain employment as
a truck driver.

¶19 Reviewing courts have sometimes approved the
Commission’s evaluation of an applicant’s ability to perform the
essential functions of work activities based upon an applicant’s
ability to perform work that differed from the work being done
at the time of sustaining the work-related injury. For example, in

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 Oliver v. Labor Commission

Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-
day Saints, the Utah Supreme Court upheld the Commission’s
consideration of Martinez’s ability to perform the essential
functions of a job he was not performing at the time of the
industrial accident giving rise to his permanent total disability
claim. 2007 UT 42, ¶ 15, 164 P.3d 384. Although Martinez was
injured while working as a movie extra, id. ¶ 3, the court upheld
the Commission’s decision to use Martinez’s concurrent work at
a fast-food restaurant as the benchmark for analyzing whether
he could perform the functions of the work activities for which
he was qualified at the time of his injuries. Id. ¶¶ 5, 13–15. So,
although Martinez was not working at the fast-food restaurant at
the time of the accident, his employment demonstrated he had
the training, competency, and physical ability required to
perform as a fast-food-restaurant employee.

¶20 In contrast, Oliver was never employed as a delivery
truck driver before the accident. Rather, according to the record,
Oliver had mostly performed physically demanding jobs. For
instance, the Commission noted that Oliver worked at heavy-
duty jobs for ‚most of his adult life‛ and even ‚had to perform
heavy labor while supervising and instructing others‛ as a
superintendent. But, although delivery truck drivers have a
physically demanding job, which often requires lifting and
moving heavy objects, the position requires more than that. See
Bureau of Labor Statistics, Delivery Truck Drivers and Driver/Sales
Workers, Occupational Outlook Handbook, 2014–15 Edition (Jan.
8, 2014), http://www.bls.gov/ooh/transportation-and-material-
moving/delivery-truck-drivers-and-driver-sales-workers.htm. A
light-delivery-truck-driver position requires on-the-job training
with an ability to navigate and operate the truck safely on
crowded streets; an understanding of routing systems or maps; a
knowledge of the products offered by the employer; an ability to
operate the company equipment, such as hand-held computers;
and an ability to effectively interact with customers. See id.
Accordingly, although Oliver was arguably able to perform the

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 Oliver v. Labor Commission

essential functions of a delivery truck driver, it is not clear he
was qualified to work in that position.

¶21 Because the Commission did not analyze Oliver’s claim
based on his actual qualifications at the time of the accident, we
conclude the Commission’s determination was based on
incorrect legal standards. Furthermore, in light of the record as a
whole, nothing in the record suggests his qualifications as a
landscaper or construction worker provided him with the
training or experience necessary for the delivery-truck-driver
position. Accordingly, we conclude that the Commission erred
in determining that Oliver ‚has not shown that his work-related
condition prevent[ed] him from performing the essential
functions of the delivery driver position for which he was
qualified at the time of the accident.‛

¶22 When reviewing formal adjudicative proceedings,
appellate courts ‚may award damages or compensation only to
the extent expressly authorized by statute.‛ See Utah Code Ann.
§ 63G-4-404 (LexisNexis 2011). In granting relief, Utah Code
section 63G-4-404(1)(b) authorizes this court to ‚order agency
action‛; ‚order the agency to exercise its discretion as required
by law‛; ‚set aside,‛ ‚modify,‛ ‚enjoin[,] or stay‛ agency action;
or ‚remand the matter to the agency for further proceedings.‛ Id.
§ 63G-4-404(1)(b)(i)–(v). Oliver asks this court to ‚reverse the
Commissioner[’s decision] and reinstate the Administrative Law
Judge’s Order.‛ But Bulloch and WCF have simply asked us to
affirm the Commission’s order. Neither party seeks a more
specific relief. Because we conclude the Commission’s
determinations were based on incorrect legal standards and
were not supported by the record as a whole, we set aside its
order denying Oliver benefits, and we allow the ALJ’s order to
stand.

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