Macys Southtowne v. Labor Commission

2019 UT App 148

THE UTAH COURT OF APPEALS

MACY’S SOUTHTOWNE CENTER,
Petitioner,
v.
LABOR COMMISSION AND DIAHANN T. JENSEN,
Respondents.

Opinion
No. 20180118-CA
Filed August 29, 2019

Original Proceeding in this Court

Theodore E. Kanell and Daniel E. Young, Attorneys
for Petitioner
Loren M. Lambert, Attorney for Respondent
Diahann T. Jensen

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.

POHLMAN, Judge:

¶1 Macy’s Southtowne Center (Employer) petitions for
review of the Labor Commission’s preliminary award of
permanent total disability benefits in favor of Diahann T. Jensen
(Claimant). Employer challenges the Commission’s findings
regarding Claimant’s maximum medical improvement (MMI)
and her ability to perform other work reasonably available. We
conclude that substantial evidence supports the Commission’s
findings, and we therefore decline to disturb its order.

BACKGROUND

¶2 Claimant sustained a lower-back injury while working as
a sales associate for Employer in April 2007. Claimant sought
treatment for her injury, and Employer accepted liability, paid
 Macy's Southtowne v. Labor Commission

her temporary total disability compensation, and agreed in 2008
to permanent partial disability compensation based on an
impairment rating of 13% of her lower back.

¶3 Claimant returned to work in October 2012 and worked
for Employer for another month, but because she was “unable to
think clearly or perform the physical aspects of her job duties,”
she found “a more sedentary job” with another company from
December 2012 to July 2013. She could not continue in that
position, however, due to chronic pain and side effects of
medication.

¶4 In 2015, Claimant filed an application for a hearing,
seeking permanent total disability compensation. The
administrative law judge (ALJ) entered a preliminary award of
permanent total disability benefits to Claimant after an
evidentiary hearing. On Employer’s motion for review, the
Commission set aside the preliminary award and remanded the
matter for referral to a medical panel on the issue of Claimant’s
medical stability.

¶5 The appointed medical panel, consisting of two experts in
occupational medicine, concluded that Claimant had reached
MMI, i.e., “medical stability from her work-related low-back
injury.” It explained that her condition “has been stable since
2015—after fusion and trial with spinal cord stimulator ended.”
After receiving this report, the ALJ again found that Claimant
was entitled to a preliminary award of permanent total disability
benefits. Employer filed another motion for review with the
Commission.

¶6 The medical record before the Commission did not
contain treatment records pertaining to Claimant’s work injury
that predated 2012, but the Commission found evidence that
Claimant underwent a discectomy in 2007. Claimant also
underwent fusion surgery involving hardware placement in
August 2013 and later underwent additional treatment to
address a mal-positioned screw and to remove the hardware

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fixation system. When Claimant continued to experience lower-
back pain, she had a spinal cord stimulator implanted in August
2014.

¶7 Eight months later, a doctor (Doctor) assessed Claimant
with a 12% whole-person impairment rating for her lumbar-
spine fusion. On May 12, 2015, Doctor wrote a letter outlining
Claimant’s capacity and stating that Claimant had reached MMI.
On July 2, 2015, a physician assistant (Physician Assistant) for
Claimant’s surgeons stated that Claimant was unable to work
due to chronic lower-back pain. This was the earliest date in the
medical records that indicated Claimant could not work.

¶8 In December 2015, Claimant’s functional capacity was
evaluated. The resulting evaluation showed that Claimant could
function only at “the sedentary physical-demand level for a
maximum of 0–3 hours per day and could sit, stand, and walk
on an occasional basis.” It also showed that she “was capable of
frequently reaching, gripping, writing, typing, and fingering, but
she was unable to complete any task in a constant capacity and
was limited to lifting no more than five pounds.”

¶9 A consultant for Employer (Employer’s Expert) also
evaluated Claimant. He concluded that Claimant “could not
work because her restrictions would be excessive.” He also
opined that “there was no evidence of a stable lumbar-spine
fusion” in Claimant’s records, and he offered various,
unexplored “potential causative factors” for her condition.
Employer’s Expert also wrote a letter, dated March 13, 2016, in
which he explained that he was unwilling to declare that
Claimant had reached MMI “based on an absence of etiology for
the complaints secondary to her second postoperative course.”

¶10 After considering the evidence and the medical panel
report concluding that Claimant reached MMI, the Commission
determined that Claimant was permanently and totally disabled.
Because MMI is a prerequisite to a finding of permanent total
disability, the Commission first had to determine whether

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Claimant had reached MMI. Although Claimant continued to
treat her lower-back injury, the Commission reasoned that MMI
“does not depend on whether [Claimant] receives treatment” but
instead “depends on whether she materially improves.” And
because Doctor and the medical panel both opined that Claimant
“has not seen and will not experience material improvement
regarding her work-related low-back condition after 2015,” the
Commission concluded that Claimant was “medically stable . . .
such that her claim for permanent disability benefits [was] ripe
for adjudication.”

¶11 The Commission then evaluated whether Claimant had
demonstrated that she was permanently and totally disabled. See
Utah Code Ann. § 34A-2-413(1)(b)(ii) (LexisNexis Supp. 2018). 1
As relevant here, the Commission evaluated whether Claimant
had met her burden to show that she “has an impairment or
combination of impairments that reasonably limit [her] ability to
do basic work activities.” See id. § 34A-2-413(1)(c)(ii). In so doing,
the Commission noted that Claimant was “severely restricted in
her ability to lift” and could engage in “only occasional walking,
standing, and sitting due to her low-back problems.” These
restrictions led the Commission to conclude that Claimant was
“not meaningfully able to perform the core tasks that are basic
prerequisites to employment” and that she had met her burden
on this element of her claim.

¶12 The Commission also evaluated whether Claimant had
met her burden of showing that her lower-back impairment
prevented her from performing the essential functions of the
work activities for which she had been qualified until the 2007
work injury. See id. § 34A-2-413(1)(c)(iii). Though this element
typically requires the Commission to compare a claimant’s work
restrictions to the duties of her past employment, the

1. This statute has been amended since the relevant time, but
because these amendments are not material to our analysis, we
cite the current version of the statute.

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Commission found that Physician Assistant’s July 2015 opinion
that Claimant was unable to work, due to chronic lower-back
pain, was “strong,” uncontradicted evidence “sufficient to show
that [Claimant] cannot perform the work for which she was
qualified at the time of the accident.”

¶13 The Commission next evaluated whether Claimant had
met her burden to establish that she cannot perform “other work
reasonably available” in light of her age, education, work
experience, and her medical and functional capacities. See id.
§ 34A-2-413(1)(c)(iv). The Commission noted that Claimant’s
functional capacity allowed her to “perform at the sedentary
physical-demand level for a maximum of 0–3 hours per day,”
and it cited Employer’s Expert’s opinion that Claimant “could
not work because her restrictions would be excessive” to
conclude that Claimant had met her burden on this element of
her claim as well.

¶14 The Commission also addressed Employer’s contention
that no evidence supported the use of the date of July 2, 2015, as
the date for when Claimant became entitled to permanent total
disability benefits. The Commission explained that the date came
from Physician Assistant, who concluded that Claimant “was
unable to work as of that date.” The Commission also explained
that this date was “unchallenged in the medical record” because
even Employer’s Expert did not dispute that Claimant was
unable to work.

¶15 Accordingly, the Commission affirmed the ALJ’s second
preliminary award of permanent total disability benefits, which
awarded Claimant benefits as of July 2, 2015. Employer now
seeks judicial review of the Commission’s order.

ISSUES AND STANDARD OF REVIEW

¶16 On review, Employer asserts two errors in the
Commission’s order awarding permanent total disability

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benefits to Claimant. First, Employer contends that “the
Commission’s finding of maximum medical improvement is not
based on the medical evidence” and therefore is “not supported
by substantial evidence.” Second, Employer contends that the
Commission erred in finding that Claimant was unable perform
other work reasonably available because Claimant “did not
present any evidence of other work reasonably available and
whether she could perform that work.”

¶17 This court’s authority to review the Commission’s
decision is derived from the Administrative Procedures Act.
Utah Code Ann. § 63G-4-403(1) (LexisNexis 2016); Provo City v.
Utah Labor Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242. That Act
provides, among other things, that we may grant relief if we
determine that the Commission “substantially prejudiced” a
petitioner by basing its action upon a factual determination “that
is not supported by substantial evidence when viewed in light of
the whole record before the court.” Utah Code Ann.
§ 63G-4-403(4)(g). A challenge to the Commission’s finding of
fact is reviewed for substantial evidence. See Provo City, 2015 UT
32, ¶ 8. In this case, both alleged errors amount to attacks on
factual determinations made by the Commission and are
therefore subject to substantial evidence review. See id. ¶¶ 12, 14
(stating that “whether an employee can perform other work
reasonably available . . . is a question of fact” and reviewing the
Commission’s finding on the issue for substantial evidence);
Griffith v. Industrial Comm’n of Utah, 754 P.2d 981, 983–84 (Utah
Ct. App. 1988) (explaining that “medical stabilization,” i.e., MMI,
“is a factual question to be determined by medical evidence
contained in the record” and considering whether substantial
evidence supported the Commission’s finding of medical
stabilization).

¶18 “A decision is supported by substantial evidence if there
is a quantum and quality of relevant evidence that is adequate to
convince a reasonable mind to support a conclusion.” Provo City,
2015 UT 32, ¶ 8 (cleaned up). “In conducting a substantial
evidence review, we do not reweigh the evidence and

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independently choose which inferences we find to be the most
reasonable.” Id. (cleaned up). “Instead, we defer to [the
Commission’s] findings because when reasonably conflicting
views arise, it is the [Commission’s] province to draw inferences
and resolve these conflicts.” Id. (cleaned up).

ANALYSIS

I. Maximum Medical Improvement

¶19 Employer challenges the Commission’s finding that
Claimant reached MMI, asserting that the Commission
improperly found Claimant’s MMI as of July 2, 2015. Employer
contends that “[t]here is no substantial evidence supporting this
finding because there was no evidence presented regarding
[Claimant’s] condition after removal of the spinal stimulator and
because the July 2, 2015 date for MMI is not supported by
substantial evidence.”

¶20 Under Utah caselaw, “medical stabilization” or “the
MMI” is “the date that the period of healing has ended and the
condition of the claimant will not materially improve and is thus
the critical point for termination of temporary disability.” Bade-
Brown v. Labor Comm’n, 2016 UT App 65, ¶ 6 n.1, 372 P.3d 44
(cleaned up). “Once healing has ended, the permanent nature of
the claimant’s disability can be assessed and benefits awarded
accordingly.” 2 Rekward v. Industrial Comm’n of Utah, 755 P.2d 166,

2. The purpose of temporary disability benefits is “to provide an
income for the injured party until [the party] is able to return to
work or to receive permanent disability benefits,” Reddish v.
Sentinel Consumer Products, 771 P.2d 1103, 1105 (Utah Ct. App.
1989); see also Booms v. Rapp Constr. Co., 720 P.2d 1363, 1366 (Utah
1986), whereas the purpose of permanent total disability benefits
is to compensate injured workers who cannot return to work, see
Utah Code Ann. § 34A-2-413 (LexisNexis Supp. 2018); see also
(continued…)

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169 (Utah Ct. App. 1988) (cleaned up). The concept of MMI is
“independent of” the claimant’s ability to return to work. Reddish
v. Sentinel Consumer Products, 771 P.2d 1103, 1104 (Utah Ct. App.
1989).

¶21 On review, Employer first contends that Claimant had a
spinal stimulator removed after the March 22, 2016 hearing and
that “[w]ithout evidence of [Claimant’s] current condition after
removal of the spinal stimulator, the Commission cannot state
that the period of healing has ended.” The Commission rejected
this argument, reasoning that Claimant “may be considered
medically stable from her work injury even if she continues to
treat the injury but her condition does not materially improve.”
(Citing Booms v. Rapp Constr. Co., 720 P.2d 1363, 1366 (Utah
1986).) Because Doctor and the medical panel both opined that
Claimant “has not seen and will not experience material
improvement regarding her work-related low-back condition
after 2015,” the Commission concluded that Claimant was
“medically stable.” Employer has not shown error in the
Commission’s reasoning.

¶22 Second, Employer contends that although “[s]everal dates
for MMI are presented in the record,” “[n]one of them are July 2,
2015,” and that therefore “the Commission’s finding of MMI on
July 2, 2015 is not supported by substantial evidence.” Employer
further contends that the “Commission’s reliance on [Claimant’s]
inability to work to support a finding of MMI is erroneous”
because Claimant’s inability to work “has no bearing on whether
her period of healing has ended.”

(…continued)
Oliver v. Utah Labor Comm’n, 2017 UT 39, ¶ 16, 424 P.3d 22
(describing the “core question” for a permanent total disability
claim as “whether, notwithstanding his or her impairments, the
employee can participate in the workforce”).

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¶23 We reject this argument because it rests on the flawed
premise that the Commission found that Claimant reached MMI
on July 2, 2015. To the contrary, the Commission found that
Claimant reached MMI in 2015 rather than specifically on July 2,
2015.

¶24 We also agree with the Commission that Employer’s
argument about July 2, 2015, “pertains to the date on which
[Claimant’s] entitlement to permanent total disability benefits
would begin,” not to the date of MMI. In the Commission’s
decision, July 2, 2015, is the date when Claimant became entitled
to permanent total disability benefits. This decision relied on the
opinion of Physician Assistant, who concluded that Claimant
was unable to work as of July 2, 2015. We cannot fault the
Commission for using this date to start Claimant’s benefits. After
all, the permanent total disability statute requires that the
injured worker be unable to return to work. See Utah Code Ann.
§ 34A-2-413(1)(b)–(c) (LexisNexis Supp. 2018).

¶25 We also conclude that the Commission’s determination
that Claimant had reached MMI as of 2015 is supported by
substantial evidence. As the Commission found, Doctor opined
in a letter, dated May 12, 2015, that Claimant had reached MMI,
and the medical panel determined that she had been “stable
since 2015.” This evidence was “adequate to convince a
reasonable mind to support a conclusion” that Claimant had
reached MMI in 2015, and it was the Commission’s prerogative
to rely on Doctor’s and the medical panel’s opinions in making
its MMI finding. See Provo City v. Utah Labor Comm’n, 2015 UT 32,
¶ 8, 345 P.3d 1242 (cleaned up).

II. Other Work Reasonably Available

¶26 Employer challenges only one element of Claimant’s
claim for permanent total disability benefits: whether she cannot
perform other work reasonably available. See generally Provo City
v. Utah Labor Comm’n, 2015 UT 32, ¶ 6, 345 P.3d 1242 (“[T]he
permanent total disability statute requires workers to prove six

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elements . . . .”). The “other work reasonably available” element
is established if the employee shows by a preponderance of the
evidence that “the employee cannot perform other work
reasonably available, taking into consideration the employee’s:
(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) (LexisNexis Supp. 2018). The element “asks
if, given [the employee’s] limitations, there is any other
reasonably available work for the employee to do.” Oliver v. Utah
Labor Comm’n, 2017 UT 39, ¶ 16, 424 P.3d 22. A failure to prove
this (or any other) element defeats the claim for permanent total
disability benefits. See Provo City, 2015 UT 32, ¶ 6.

¶27 According to Employer, Claimant “failed to present any
evidence” of “what work is or is not reasonably available” given
her ability “to do sedentary work for one to three hours a day.”
Employer asserts that the Commission’s finding on the “other
work reasonably available” element impermissibly relied on its
findings on another element of the claim, namely, the “basic
work activities” element, which “asks whether, irrespective of
specific employment prospects, the employee retains the core
functionality necessary to meaningfully participate in the
workforce.” Oliver, 2017 UT 39, ¶ 16; see also Utah Code Ann.
§ 34A-2-413(1)(c)(ii) (requiring proof, by a preponderance of the
evidence, that “the employee has an impairment or combination
of impairments that reasonably limit the employee’s ability to do
basic work activities”). Employer argues that the Commission
“speculated that because [Claimant] has significant impairments,
she also could not perform the duties that may be currently
available,” and that the “Commission had no foundation to
make this conclusion because no evidence was presented on
what jobs are currently available and what the duties are of
those jobs.”

¶28 We agree with Employer that Claimant bore the burden
of proving this element of her permanent total disability claim
by a preponderance of the evidence. See Oliver, 2017 UT 39, ¶ 15.
The elements of that claim “are all specific inquiries into an

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employee’s ability to work” and seek to resolve whether,
notwithstanding impairments, the employee “can participate in
the workforce.” Id. ¶ 16. And while we agree with Employer that
satisfying one element of a permanent total disability claim
cannot automatically satisfy another element, see id. ¶ 26, we
disagree with Employer’s suggestion that evidence relevant to
one element cannot be relevant to another element. Indeed, our
supreme court has explained that the “basic work activities” and
“other work reasonably available” elements are related and that
both are met “only if an employee suffers from some limitation
on the ability to do some common workplace activity.” Id.

¶29 Contrary to Employer’s contention, we also conclude that
the record contains substantial evidence to support the
Commission’s determination that Claimant proved she cannot
perform other work reasonably available. To begin, we note that
“the burden of proof on this element requires an employee to
prove a negative,” and the Utah Supreme Court has stated that
in such circumstances “the employee’s burden of production is
not high.” Id. ¶ 56. Regarding the “other work reasonably
available” element, the court has also instructed that “evidence
of the extent of an employee’s impairment, when combined with
the Labor Commission’s good common sense and general
understanding of the job market, will often be enough to satisfy
the employee’s burden of proof on this element.” 3 Quast v. Utah
Labor Comm’n, 2017 UT 40, ¶ 27, 424 P.3d 15.

3. Employer suggests that this statement in Quast is dicta and “is
not controlling in this case.” But the Utah Supreme Court
appears to have deliberately made this statement “for the
guidance of the bench and bar” on a point of law, and it is
therefore judicial dicta, which we are obligated to follow. See
Ortega v. Ridgewood Estates LLC, 2016 UT App 131, ¶ 14 n.4, 379
P.3d 18. We reject Employer’s suggestion that Quast is not
controlling.

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¶30 Here, the Commission considered the extent of Claimant’s
impairment. For instance, the results of her functional capacity
evaluation showed that she could “perform at the sedentary
physical-demand level for” only “a maximum of 0–3 hours per
day.” See Utah Code Ann. § 34A-2-413(1)(c)(iv)(E). This
evaluation also showed that she was “unable to complete any
task in a constant capacity.” Significantly, even Employer’s
Expert recognized that Claimant “could not work because her
restrictions would be excessive.”

¶31 The Commission also made findings regarding
Claimant’s age, education, and past work experience. See id.
§ 34A-2-413(1)(c)(iv)(A)–(C). For example, it found that Claimant
returned to work for Employer in October 2012, but because she
was “unable to think clearly or perform the physical aspects of
her job duties,” she found “a more sedentary job” with another
company from December 2012 to July 2013. It also found that
due to “concentration problems brought on by her medication
and chronic pain,” she “could not continue in that position.”
Employer has not challenged these findings. Additionally, the
Commission had before it Claimant’s testimony. Claimant
testified that she had “applied numerous places” after July 2013
but that she could not conceive of any full-time jobs that she
could now perform.

¶32 Given this evidence of Claimant’s impairment, work
history, and attempts to return to the workforce, the
Commission could reasonably combine its consideration of this
evidence with its “good common sense and general
understanding of the job market” to find that Claimant could not
perform the duties of any jobs that may be reasonably available.
See Quast, 2017 UT 40, ¶ 27. On this record, we thus conclude
that “a reasonable mind might accept as adequate the evidence
supporting the [Commission’s] decision” that Claimant had met
her burden of production on this element. See id. ¶ 15 (cleaned
up).

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CONCLUSION

¶33 Substantial evidence supports the Commission’s findings
regarding Claimant’s MMI and her inability to perform other
work reasonably available. We therefore do not disturb its
preliminary award of permanent total disability benefits to
Claimant.

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