Wright v. Labor Commission

2021 UT App 43

THE UTAH COURT OF APPEALS

JERRY B. WRIGHT,
Petitioner,
v.
LABOR COMMISSION, BRENT BROWN CHEVROLET & BUICK, AND
WCF MUTUAL INSURANCE COMPANY,
Respondents.

Opinion
No. 20200103-CA
Filed April 15, 2021

Original Proceeding in this Court

Michael Gary Belnap, Virginius Dabney, and Stony
V. Olsen, Attorneys for Petitioner
Matthew J. Black, Attorney for Respondents Brent
Brown Chevrolet & Buick and WCF Mutual
Insurance Company

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

POHLMAN, Judge:

¶1 Jerry B. Wright asks us to review the Labor Commission’s
decision denying his claim for benefits under Utah’s Workers’
Compensation Act (the Act). He contends that the Commission
erred in relying on the medical panel’s opinions because its
members were both biased and unqualified to render medical
opinions in his case. He also contends that the evidence does not
support the Commission’s determination that his work accident
only temporarily aggravated his preexisting conditions. Because
we conclude the Commission did not err in relying on the
medical panelists’ opinions, and because its decision is
supported by substantial evidence in the record, we decline to
disturb the Commission’s decision.
 Wright v. Labor Commission

BACKGROUND 1

¶2 On August 20, 2007, Wright was injured while working
for Brent Brown Chevrolet & Buick (Brown). He reported feeling
“pain and a cold sensation in his spine” and “sharp pain in his
mid and low back” while moving fixtures and other items as
part of a remodeling project in Brown’s body shop (the
Accident). Wright took several days off work after the Accident
and, on August 28, sought medical treatment for his back pain
with Dr. Schumann, who prescribed physical therapy. One week
later, on September 5, 2007, Dr. Schumann released Wright to
work with no restrictions because Wright “was feeling much
better.”2

¶3 Nearly one year later, in July 2008, Wright noticed pain in
his mid and low back. At the time, “there was no attribution of
his back symptoms to his employment with Brown.” Instead, his
treating physician prescribed him medication for possible reflux
disease.

¶4 Then, in September 2009, Wright again sought treatment
for back pain, and he obtained x-rays, a bone scan, and MRIs of
his thoracic and lumbar spine. Ultimately, Dr. Reichman, one of
Wright’s treating physicians, recommended lumbar surgery and
performed the procedure in March 2012. In his post-operative
notes, Dr. Reichman observed that Wright’s lumbar spine
“showed end-stage disc disease and severe stenosis.” Although
Wright’s lumbar symptoms improved after surgery, his mid-

1. “In reviewing an order from the Commission, we view the
facts in the light most favorable to the Commission’s findings
and recite them accordingly.” O’Connor v. Labor Comm’n, 2020
UT App 49, ¶ 2 n.1, 463 P.3d 85.

2. This was not the first time Wright had suffered back pain. He
injured his back in 1987 while moving heavy items for another
employer and had surgery to address the issue in 1988.

20200103-CA 2 2021 UT App 43
 Wright v. Labor Commission

back pain increased. Dr. Reichman diagnosed Wright with “T11
disc disease causing chronic pain syndrome,” and he performed
a “T11-12 decompression and fusion” of Wright’s thoracic spine
in March 2013.

¶5 That same year, Wright applied for a hearing with the
Commission, claiming entitlement to workers’ compensation
benefits as a result of the Accident. Brown’s medical consultant,
Dr. Mattingly, evaluated Wright in March 2013 and opined that
Wright’s ongoing back issues were not related to the Accident.
She concluded that the Accident “caused a minor temporary
aggravation of the pre-existing thoracic degenerative condition”
and that Wright “reached medical stability from his work
injuries as of September 5, 2007.” In contrast, Dr. Reichman
opined that Wright had not reached medical stability from the
Accident-related injuries as late as December 2012. Similarly,
Dr. Leininger, a pain management specialist who treated Wright,
opined in March 2013 that injuries Wright sustained in the
Accident had not reached medical stability.

¶6 Because of the conflicting medical opinions, the
administrative law judge (ALJ) appointed a medical panel to
independently assess the medical aspects of Wright’s claim. The
ALJ appointed Dr. Jones, a general surgeon, as the medical panel
chair and charged him with selecting at least one additional
specialist to serve on the panel. Dr. Jones chose Dr. Biggs, a
family practice and occupational physician, to be the second
panel member. The ALJ asked the panel to, among other things,
opine on what injury was caused or worsened by the Accident,
what medical care was necessary to treat any such injuries, and
whether those injuries had reached medical stability.

¶7 The panel reviewed Wright’s extensive medical records
and interviewed him about the Accident and his symptoms. 3 Its

3. The medical panel produced four reports over the course of
the proceeding. Wright objected to the first three reports, and the
(continued…)

20200103-CA 3 2021 UT App 43
 Wright v. Labor Commission

report included what the ALJ described as “a thorough
discussion of intervertebral disc degeneration.” Following that
discussion, the panel applied its “understanding of degenerative
changes” to Wright’s condition and observed that his scans
presented no evidence of acute injury but revealed “clear
evidence of progressive degenerative disease . . . in many areas
of the spine.” Based on those observations, the panel concluded
that the Accident caused a “[s]prain/strain of [Wright’s] back
muscles” and only temporarily exacerbated the degenerative
disease of his thoracic and lumbar spine. The panel explained
that the pain Wright experienced “every few years” after the
Accident was “expected and [is] considered to be a normal
manifestation of the chronic disease process” but that Wright’s
Accident-related injuries “reached stability in September 2007.”
And when asked in a supplemental inquiry whether Wright’s
injuries “returned to baseline”—meaning “the thoracic spine’s
condition immediately before the industrial accident”—the
panel responded that “it is more probable than not that [Wright]
was returned to baseline” by September 5, 2007. Finally, the
panel opined that the “physician visits and a diagnostic
procedure to manage the low back sprain/strain and the thoracic
mid-back symptoms” were the only necessary treatments
stemming from the Accident. “The panel further clarified that
neither the 2012 lumbar fusion nor the 2013 T11 fusion were
necessary” to treat the injuries attributable to the Accident.

¶8 Relying on the medical panel’s evaluation, the ALJ
concluded that the Accident “caused a temporary exacerbation
of [Wright’s] pre-existing lumbar and thoracic spinal
degeneration” and that he was entitled to recover medical
expenses for the physician visits and a diagnostic procedure

(…continued)
ALJ resolved those objections by making inquiries of the panel to
which it responded in supplemental reports. No objection was
made to the fourth report and the ALJ admitted all four reports
into evidence.

20200103-CA 4 2021 UT App 43
 Wright v. Labor Commission

associated with the Accident. But the ALJ rejected Wright’s claim
for temporary total disability compensation for the period of
March 13, 2013, to the date of medical stability, concluding that
Wright’s Accident-related injuries “reached medical stability on
September 5, 2007.” 4 The ALJ also addressed Wright’s objection
to the medical panel’s composition, as well as his contention that
the panelists lacked the requisite expertise to evaluate his claims.
The ALJ found that Dr. Jones has “extensive experience in
causation analysis for work-related conditions” like the injuries
alleged in Wright’s claim and that “Dr. Biggs has extensive
experience[] in diagnosing, treating and determining the medical
cause of work related low back injuries and lumbar degenerative
disc disease.”

¶9 Wright filed a motion for review with the Commission.
Among other things, he argued that the panel lacked the
knowledge and skill to opine on his back injuries. He also
challenged the ALJ’s dismissal of his claim for temporary total
disability, arguing that the evidence does not support the
conclusion that the Accident caused only temporary aggravation
of his preexisting conditions, which reached medical stability by
September 5, 2007.

¶10 The Commission affirmed the ALJ’s decision and adopted
the ALJ’s findings of fact. Regarding Wright’s argument that the
panel was not qualified, the Commission shared the ALJ’s view
that the panelists “ha[d] the requisite experience in treating the
specific condition at issue in this matter.” The Commission also
determined that the panel’s evaluation was persuasive and that

4. The ALJ also dismissed Wright’s claims for permanent partial
disability compensation and travel reimbursement but did so
without prejudice. The ALJ determined that these claims were
not ripe for adjudication because the parties excluded them from
their stipulated findings of fact and request for referral to the
medical panel. The dismissal of these claims is not at issue in our
review.

20200103-CA 5 2021 UT App 43
 Wright v. Labor Commission

its “opinion that the [Accident] resulted in only a temporary
back injury that returned to baseline and reached medical
stability by September 5, 2007, is supported by the evidence in
the record.” Specifically, the Commission concluded that the
panel’s opinions were supported by the opinions of
Dr. Schumann and Dr. Mattingly, as well as Wright’s imaging
studies, and were consistent with Dr. Reichman’s diagnoses of
lumbar and thoracic degeneration.

¶11 Wright filed a motion for reconsideration. He argued
again that the medical panel was not qualified to opine in this
case. He also argued that the panel failed to offer meaningful
analysis in its report and that his treating physicians’ opinions
should have been given more weight. The Commission denied
Wright’s motion, stating that Dr. Biggs and Dr. Jones were
qualified to opine in this case because “they have extensive
experience in treating back injuries.” The Commission also
rejected Wright’s characterization of the medical panel’s report,
reaffirming that the panel had considered Wright’s medical
history, including the opinions of Dr. Reichman and
Dr. Leininger, and had engaged in “a well-reasoned review and
analysis” of Wright’s back problems.

¶12 On the same day the Commission issued its order
denying Wright’s first motion for reconsideration, Wright filed a
second motion for reconsideration. In his second attempt,
Wright argued for the first time that the panel members were so
“intimately intertwined” with WCF Mutual Insurance Company
(WCF)—Brown’s workers’ compensation carrier at the time of
the Accident—that they could not be impartial. He asserted that
Dr. Biggs’s employment as an adjunct professor at the Rocky
Mountain Center for Occupational and Environmental Health
(Rocky Mountain), coupled with monetary donations WCF
made to Rocky Mountain, created a financial conflict of interest
requiring the appointment of a new, “unconflicted” panel. The
Commission rejected Wright’s argument on procedural grounds,
finding his second motion was untimely and not “contemplated
or permitted by the applicable statutes and rules governing

20200103-CA 6 2021 UT App 43
 Wright v. Labor Commission

reconsideration requests.” 5 The Commission, therefore,
reaffirmed its previous decision and denied Wright’s requests
for reconsideration.

¶13 Wright seeks judicial review.

ANALYSIS

¶14 Wright challenges the Commission’s decision on three
separate grounds. First, he contends that the Commission erred
in not rejecting the medical panel’s opinions on the basis that at
least one panelist had a conflict of interest that unfairly biased
the panel’s evaluation of his claim. Second, he contends that the
Commission erred when it relied on the medical panel’s
opinions because the panel members lacked the necessary
expertise to opine on the medical aspects of this case. Third, he
contends that the Commission’s determination that the Accident
caused only a temporary aggravation of his preexisting
conditions is not supported by substantial evidence.

I. Conflict of Interest

¶15 Wright contends that a medical panel “is supposed to be
impartial” but that the panel in this case was “not impartial at
all.” In particular, he asserts that panelist Dr. Biggs could not
impartially evaluate his claim because WCF makes monetary
donations to Rocky Mountain, which employs Dr. Biggs as an
adjunct professor. Based on that alleged conflict, Wright asks
this court to set aside the Commission’s decision and order the
appointment of a new medical panel.

5. Utah Code section 63G-4-302(1)(a) permits a party to file “a
written request for reconsideration” within twenty days after the
subject order is issued. Utah Code Ann. § 63G-4-302(1)(a)
(LexisNexis 2019); Resort Retainers v. Labor Comm’n, 2010 UT App
229, ¶ 30, 238 P.3d 1081.

20200103-CA 7 2021 UT App 43
 Wright v. Labor Commission

¶16 We agree that bias, or the potential for bias, created by a
panel’s purported connection to the workers’ compensation
insurance industry is an important issue worthy of exploration. 6
But we cannot reach the issue here. Wright did not raise this
issue with the Commission until his second motion for
reconsideration, and the Commission rejected his argument
without reaching the merits, finding that it was untimely and
improperly raised.

¶17 In his opening brief, Wright does not address the
Commission’s stated rationale for rejecting his argument.
Instead, Wright focuses solely on the merits of his conflict-of-
interest argument without addressing the fact that the
Commission rejected his argument as untimely and procedurally
improper. Although Wright addresses the timeliness issue in his
reply brief, the reply brief “is reserved for answering any new
matter set forth in the opposing brief, not for making an
argument in the first instance.” Webster v. JP Morgan Chase Bank,
NA, 2012 UT App 321, ¶ 21, 290 P.3d 930 (cleaned up); see also
Hinkle v. Jacobsen, 2019 UT 72, ¶ 25, 456 P.3d 738 (“When a party
raises an issue for the first time in a reply brief, that issue is
waived and will typically not be addressed by the appellate
court.” (cleaned up)). Because Wright does not address the
Commission’s “reasoning and explain why it was wrong in [his]
opening brief,” we will not disturb the Commission’s decision
on this issue. See Bad Ass Coffee Co. of Hawaii v. Royal Aloha Int’l
LLC, 2020 UT App 122, ¶ 55, 473 P.3d 624; see also Kendall v.
Olsen, 2017 UT 38, ¶ 13, 424 P.3d 12 (“We have consistently held
that issues raised by an appellant in the reply brief that were not
presented in the opening brief are considered waived and will

6. In his briefing, Wright explains that this issue has been raised
in another Labor Commission case, Gamez v. B&S Construction,
Inc., No. 17-0330, 2019 WL 7599813 (Utah Labor Comm’n July 22,
2019). The Gamez case, and the conflict-of-interest issue, is now
pending before the Utah Supreme Court (Case No. 20200625-
SC).

20200103-CA 8 2021 UT App 43
 Wright v. Labor Commission

not be considered.” (cleaned up)); Martin v. Kristensen, 2019 UT
App 127, ¶ 61, 450 P.3d 66 (explaining that the “failure to engage
with the [lower tribunal’s] reasoning until the reply brief is
fatal”), cert. granted, 456 P.3d 386 (Utah 2019).

II. Panel Members’ Qualifications

¶18 Wright challenges the Commission’s determination that
Dr. Jones and Dr. Biggs were qualified under the Act to opine on
the medical causation issues in this case. Based on the context in
which this issue was raised before the Commission, we
understand Wright to be challenging the Commission’s refusal
to sustain his objection to the medical panelists’ expertise and
thus the admission of their reports. “We review the
[Commission’s] refusal to exclude a medical panel report on the
basis of an objection under an abuse of discretion standard,
providing relief only if a reasonable basis for that decision is not
apparent from the record.” Foye v. Labor Comm’n, 2018 UT App
124, ¶ 16, 428 P.3d 26 (cleaned up); Clean Harbors Env’t Services v.
Labor Comm’n, 2019 UT App 52, ¶ 10, 440 P.3d 916. 7 Because the
record provides a reasonable basis for the Commission’s
decision, Wright’s challenge fails.

7. Without citing authority in support, Wright contends that this
issue presents a pure legal question, and he invites us to review
it for correctness. In contrast, Brown and WCF argue that the
issue presents a pure factual question, which we review for
substantial evidence. Unfortunately, Wright does not engage on
this issue and has made no argument to persuade us that we
should apply a different standard of review from that applied in
Foye. Accordingly, as set forth in that case, we will review this
issue for abuse of discretion. See Foye v. Labor Comm’n, 2018 UT
App 124, ¶ 16, 428 P.3d 26; cf. Fogleman v. Labor Comm’n, 2015 UT
App 294, ¶ 21, 364 P.3d 756 (explaining that the petitioner could
not sustain her burden on review in “the absence of an argument
squarely addressing,” among other things, “the cases that cut
against her position”).

20200103-CA 9 2021 UT App 43
 Wright v. Labor Commission

¶19 When there are conflicting medical opinions regarding
the medical aspects of a workers’ compensation claim, the
Commission’s rule requires the appointment of a medical panel.
Utah Admin. Code R602-2-2(A)(1); see also Foye, 2018 UT App
124, ¶ 20 (explaining that a medical panel must be appointed
“where one or more significant medical issues may be involved,”
including the issue of causation (cleaned up)). The panel’s
primary purpose is “to evaluate medical evidence and advise an
administrative law judge with respect to the administrative law
judge’s ultimate fact-finding responsibility.” See Danny’s Drywall
v. Labor Comm’n, 2014 UT App 277, ¶ 14, 339 P.3d 624 (cleaned
up). The qualifications of a medical panel are set forth in Utah
Code section 34A-2-601(1)(c). It states that “[a] medical panel
appointed under this section shall consist of one or more
physicians specializing in the treatment of the disease or
condition involved in the claim.” Utah Code Ann. § 34A-2-
601(1)(c) (LexisNexis 2019). 8

¶20 Wright contends that neither Dr. Biggs nor Dr. Jones was
qualified to opine in this case because they are generalists
instead of “physicians specializing in the treatment of [Wright’s]
medical injuries.” He reasons that Dr. Biggs and Dr. Jones are
“not specialists who conduct spinal surgeries nor are they
qualified to recommend for or against such surgeries, or to
administer pain treatments at the level of Dr. Leininger.”
Regarding Dr. Biggs specifically, Wright asserts that
occupational physicians like Dr. Biggs must have a “wide
knowledge of clinical medicine and must be competent in a
number of important areas.” (Cleaned up.) Wright argues that
this makes Dr. Biggs a “jack of all trades and a master of none,”
rendering him unqualified as a specialist under the Act. As for
Dr. Jones, Wright similarly reasons that because Dr. Jones treats
patients “with a broad spectrum of diseases,” he is not a

8. Because there have been no material changes to the statute
since the panel’s appointment in 2017, we cite the current
version.

20200103-CA 10 2021 UT App 43
 Wright v. Labor Commission

specialist when it comes to the issues in this case and “at best . . .
provides access to the spine for other, qualified doctors, to treat.”
(Cleaned up.)

¶21 The Commission disagreed. Dr. Biggs and Dr. Jones were
primarily empaneled to opine on whether the Accident caused
the back pain Wright was experiencing years after the Accident
and whether and when Wright achieved medical stability. The
Commission determined that “[w]hile neither Dr. Biggs nor
Dr. Jones practice exclusively in the area of orthopedic or spinal
conditions,” they “do have experience and expertise in treating
back problems such as those at issue in Mr. Wright’s case.”
Specifically, the Commission observed that Dr. Jones has
“extensive experience in causation analysis of work-related
conditions” and “has worked closely with spinal surgical
specialists in the operating room” and that Dr. Biggs “has
extensive experience in diagnosing and treating work related
low back injuries and lumbar [degenerative disc disease], as well
[as] determination of work-relatedness of lumbar disease.”
Based on the Commission’s findings that the panelists “have
extensive experience in treating back injuries—including those
involving the spine”—we discern no abuse of the Commission’s
discretion in rejecting Wright’s challenge to the medical panel’s
reports.

¶22 In reaching this conclusion, we reject Wright’s
premise that a physician with a generalist background is
necessarily unqualified to render an opinion in a particular
case. While both Dr. Biggs and Dr. Jones may practice in a
wider variety of fields than other physicians, that background
does not render them unqualified if, as the Commission found,
they have “extensive experience in treating” the conditions at
issue. See Edwards v. Tillery, 671 P.2d 195, 196 (Utah 1983) (per
curiam) (determining that a medical panel member who no
longer treated patients was still qualified because he had
experience treating the “disease involved in the plaintiff’s
claim”).

20200103-CA 11 2021 UT App 43
 Wright v. Labor Commission

¶23 We also reject Wright’s contention that the Commission
should have excluded the medical panel’s reports because
neither member was qualified to conduct or even recommend
for or against spinal surgeries or to administer certain pain
treatments. Even assuming Wright’s claims about the panelists’
qualifications are accurate, his contention is ultimately
immaterial. None of the physicians who evaluated Wright
opined that his surgeries were not medically necessary. Thus,
that issue was not in dispute and Wright suffered no harm from
the panel’s evaluation of it. See White v. Labor Comm’n, 2020 UT
App 128, ¶ 25, 474 P.3d 493 (“We are unable to grant relief from
an agency action unless the alleged error substantially
prejudiced the person seeking judicial review . . . .” (cleaned
up)). Further, the fact that neither physician was qualified to
perform spinal surgery or administer certain medications does
not render him unqualified to opine on whether the Accident
medically caused or permanently aggravated a preexisting spine
condition.

¶24 In sum, because the record supports the panel’s
qualifications, we decline to disturb the Commission’s decision
to admit the panel’s reports.

III. Sufficiency of the Evidence

¶25 Wright contends that the Commission erred in finding
that the Accident caused only a temporary aggravation of his
preexisting back conditions and in finding that he returned to his
pre-accident baseline status by September 5, 2007. Wright argues
that the Commission “ignored the long standing concept of
‘lighting up’ a pre-existing asymptomatic condition.” He also
argues that had the Commission properly considered all the
evidence, it would have reached a different conclusion.

¶26 To the extent Wright presents a legal question, we review
it for correctness. Hutchings v. Labor Comm’n, 2016 UT App 160,
¶ 24, 378 P.3d 1273. And to the extent Wright challenges the
Commission’s finding that the Accident only temporarily

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 Wright v. Labor Commission

aggravated his preexisting back conditions and was not causally
connected to his ongoing symptoms, that challenge presents a
question of fact that we review for substantial evidence. Johnston
v. Labor Comm’n, 2013 UT App 179, ¶ 23, 307 P.3d 615
(“Aggravation of a pre-existing condition is a factual matter to
be determined by the ultimate finder of fact.”); see also Fogleman
v. Labor Comm’n, 2015 UT App 294, ¶ 38, 364 P.3d 756 (“Whether
medical causation has been established is an issue of fact, which
we review for substantial evidence.”). “Substantial evidence is
more than a mere scintilla of evidence though something less
than the weight of the evidence, and the substantial evidence test
is met when a reasonable mind might accept as adequate the
evidence supporting the decision.” Hutchings, 2016 UT App 160,
¶ 30 (cleaned up).

¶27 For the reasons explained below, we decline to disturb the
Commission’s decision, concluding that it correctly applied the
law and that there is substantial evidence in the record to
support its findings.

¶28 Under the Act, an “employee . . . who is injured . . . by
accident arising out of and in the course of the employee’s
employment, wherever such injury occurred, if the accident was
not purposely self-inflicted, shall be paid” benefits. Utah Code
Ann. § 34A-2-401(1) (LexisNexis 2019). Thus, in addition to
proving that an injury was accidental, an employee must
establish “that there is a causal connection between the injury
and the employment.” White v. Labor Comm’n, 2020 UT App 128,
¶ 12, 474 P.3d 493.

¶29 To prove medical causation, 9 an injured employee must
establish “by evidence, opinion, or otherwise that the stress,

9. The causal connection element requires a showing of both
medical and legal causation. White v. Labor Comm’n, 2020 UT
App 128, ¶ 12, 474 P.3d 493. In this case, the parties do not
(continued…)

20200103-CA 13 2021 UT App 43
 Wright v. Labor Commission

strain, or exertion required by his or her occupation led to the
resulting injury or disability.” Fogleman, 2015 UT App 294, ¶ 38
(cleaned up). Medical causation generally may also be
established when “an industrial injury aggravates or lights up a
pre-existing condition and has a causal connection with the
subsequent onset of symptoms.” Id. (cleaned up). To successfully
assert that a work-related injury lit up a preexisting condition,
the claimant “must prove the subsequent disability is medically
the result of an exertion or injury that occurred during a work-
related activity.” Virgin v. Board of Review of Indus. Comm’n, 803
P.2d 1284, 1288 (Utah Ct. App. 1990) (cleaned up). That means
“if a preexisting condition is only temporarily aggravated by an
industrial accident, a claimant may only recover for the
temporary aggravation, and not for unrelated symptoms or
complications he may experience down the road.” Valdez v. Labor
Comm’n, 2017 UT App 64, ¶ 14, 397 P.3d 753.

¶30 Wright first asserts that in considering his claim for
benefits, the Commission committed “legal error by ignoring the
. . . concept of ‘lighting up’ a pre-existing asymptomatic
condition.” The record does not bear out this assertion. The
Commission acknowledged that the Accident aggravated
Wright’s preexisting back conditions, and it awarded him
benefits for the medical expenses he incurred related to the
aggravation. It then considered whether the aggravation was
temporary or permanent because, as explained, if the
aggravation was temporary, Wright could not recover for
unrelated symptoms he experienced after he returned to
baseline. See id. This was a correct application of the law. Thus,
we discern no legal error in the Commission’s decision.

¶31 Wright next argues that the Commission’s findings that
he “returned to baseline” by September 5, 2007, and suffered

(…continued)
dispute the issue of legal causation; only the issue of medical
causation is in dispute.

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 Wright v. Labor Commission

only a temporary aggravation of his preexisting conditions are
not supported by substantial evidence. We disagree. The
Commission’s findings are supported by ample evidence,
including the thorough opinions of the medical panel, the
opinions of Dr. Mattingly and Dr. Schumann, the observations of
Dr. Reichman, and Wright’s medical records, including his
imaging studies. Among other things, that evidence explained
that Wright was not suffering from an acute injury but from the
natural progression of a degenerative process that began before
the Accident and flared up years later.

¶32 To resist this conclusion, Wright claims that the
Commission’s finding that his ongoing back issues were not
caused by the Accident “was based entirely on the idea that . . .
Wright did not seek medical attention between September of
2007 and October of 2008.” But the record belies Wright’s claim.
While that fact was appropriately considered as part of the
Commission’s analysis, it was not considered in isolation, nor
was it dispositive. As explained, the Commission relied on the
opinions of multiple physicians who concluded that Wright’s
temporary aggravation had resolved by September 5, 2007, as
well as the imaging studies, medical records, and
Dr. Reichman’s observations, all of which further validated the
Commission’s findings.

¶33 Wright also asserts that the Commission was remiss to
rely on the opinions of Dr. Mattingly and Dr. Schumann because
they were not “qualified orthopedic surgeon[s]” and their
opinions “are just conclusions without reasoning.” Again, we
disagree. Dr. Mattingly and Dr. Schumann were not disqualified
from offering their opinions about Wright’s claim for the same
reasons the medical panelists were not disqualified to opine in
this case. See supra ¶¶ 21–23. The fact that these physicians were
not orthopedic surgeons does not invalidate their assessments of
the causation issues presented in this case.

¶34 Further, we do not share Wright’s view that their
opinions lacked reasoning. Dr. Mattingly’s opinion is supported

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 Wright v. Labor Commission

by a fifteen-page report, in which she detailed Wright’s current
complaints, functional status, work status, prior injuries, current
medications, family history, social history, a physical exam, and
past medical history. With that history in mind, she then opined
that the Accident had caused only a “temporary aggravation of
the pre-existing thoracic degenerative condition.” She made
specific note of the lack of reported back pain for a considerable
time after the Accident; the imaging studies showing
degenerative findings in Wright’s spine but showing no
evidence of injury related to the Accident; the fact that Wright
worked strenuous jobs after leaving Brown’s employ; Wright’s
report that he worked out at the gym and was “physically
active” after the Accident; and a general lack of evidence tying
the Accident to his current problems. Wright may disagree with
Dr. Mattingly’s conclusions, but her opinion is not conclusory.
And as for Dr. Schumann, his opinion is more limited in scope,
but his decision to release Wright to regular job duties without
restrictions on September 5, 2007, was based on his personal
observation that Wright “was much improved” from when he
was seen shortly after the Accident. The Commission did not err
in relying on his real-time assessment.

¶35 Wright next assails the Commission for not giving more
weight to the opinions of his treating physicians, Dr. Reichman
and Dr. Leininger, who both opined that the Accident medically
caused Wright’s ongoing injuries. The Commission considered
these opinions. But as “the ultimate finder of fact,” Foye v. Labor
Comm’n, 2018 UT App 124, ¶ 23, 428 P.3d 26 (cleaned up), the
Commission has the discretion to decide what weight to give
conflicting opinions, and we are in no position to reweigh the
evidence, see Choate v. ARS-Fresno LLC, 2016 UT App 249, ¶ 20,
391 P.3d 344 (“[T]here is perhaps no more basic tenet of
appellate law than that we will not find new facts or reweigh
evidence.”). Even if Wright’s contrary findings are reasonable,
he cannot meet his burden of persuasion because substantial
evidence supports the Commission’s findings. See Hutchings,
2016 UT App 160, ¶ 30 (“We will not overturn the Commission’s
factual findings if they are based on substantial evidence, even if

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 Wright v. Labor Commission

another conclusion from the evidence is permissible.” (cleaned
up)).

¶36 Finally, Wright contends that the Commission was wrong
to conclude that he returned to baseline after the Accident,
pointing to his claim that he never returned to a pain-free state.
But this claim is not without dispute. In September 2007,
Wright’s injuries were “much improved,” and he was
accordingly released to work without restrictions. He next saw a
doctor nearly ten months later in July 2008 complaining of mid-
and low-back pain, but he made no mention of the Accident.
And he did not seek treatment for back pain again until
September 2009, more than one year later. Given these facts, the
medical panel, the ALJ, and, in turn, the Commission, were not
obligated to accept Wright’s post-hoc statement that the pain
never subsided. The Commission considered his statements in
light of the record as a whole, and given the conflict in the
evidence, we will not question its judgment. See JP’s Landscaping
v. Labor Comm’n, 2017 UT App 59, ¶ 14, 397 P.3d 728 (“It is the
province of the Commission, not appellate courts, to resolve
conflicting evidence, and where inconsistent inferences can be
drawn from the same evidence, it is for the Commission to draw
the inferences.” (cleaned up)).

¶37 In short, we decline to disturb the Commission’s decision
denying Wright temporary total disability benefits. The
Commission applied the correct legal standard in considering
whether the Accident lit up Wright’s preexisting conditions, and
substantial evidence supports the Commission’s findings that
the Accident-related injuries were only temporary.

CONCLUSION

¶38 We conclude that Wright has not shown that the
Commission erred in rejecting his claim of medical panel bias as
untimely. We also conclude that the Commission did not err in
determining that the panel members were qualified to render a

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 Wright v. Labor Commission

medical opinion in this case. Finally, we conclude that
substantial evidence supports the Commission’s findings that
the Accident caused only a temporary aggravation of Wright’s
preexisting conditions and that he reached medical stability by
September 5, 2007. We therefore decline to disturb the
Commission’s decision denying Wright benefits.

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