Fogleman v. Labor Comm'n

364 P.3d 756

Sandra Gail FOGLEMAN, Petitioner,

v.LABOR COMMISSION, Kolob Care and Rehabilitation Centers, and Pennsylvania Manufacturers Association Insurance Company, Respondents.

No. 20141137–CA.

Court of Appeals of Utah.

Dec. 10, 2015.

Virginius Dabney, St. George and Sonia Huntsman Ickes, for Petitioner.

Jaceson R. Maughan, Attorney for Respondent, Labor Commission.

Eric J. Pollart, Christin Bechmann, and Mark A. Riekhof, for Respondents, Kolob Care and Rehabilitation Centers and Pennsylvania Manufacturers Association Insurance Company.

Judge JOHN A. PEARCE authored this Opinion, in which Judges GREGORY K. ORME and J. FREDERIC VOROS JR., concurred.

PEARCE, Judge:

¶ 1 Sandra Gail Fogleman seeks judicial review of the denial of her application for permanent total disability compensation. We conclude that the Utah Labor Commission's Appeals Board (the Board) did not err in affirming an administrative law judge's denial of Fogleman's claim for permanent total disability compensation. We also conclude that the Board did not err by declining to award Fogleman compensation for the treatment of conditions it found to be medically unrelated to her industrial accident. Accordingly, we decline to disturb the Board's decision.

BACKGROUND¹

¶ 2 Kolob Care and Rehabilitation Centers (Kolob) is a medical care facility.² Fogleman worked as Kolob's receptionist. Her duties included greeting visitors, answering the telephone, filing paperwork, and interacting with vendors. Additionally, Fogleman handled Kolob's mail, which required her to visit an on-site mailbox by walking through a parking lot and up a "slight incline across some stepping stones."

¶ 3 While delivering mail to the mailbox one day, Fogleman fell and landed on her hands and knees (the Work Accident). Fogleman believes that an unstable stepping stone " ‘flipped’ causing her to fall." Because Fogleman was carrying the mail in her left hand, "[s]he felt most of the force of the fall on her right knee, hip and hand."

¶ 4 After a coworker cleaned her wounds, Fogleman finished her work shift. Later that day, Fogleman visited an urgent care provider. The clinic assessed Fogleman with "contusions and abrasions" on her hands and knees. Fogleman's hands eventually healed, but her knee and hip pain continued.

¶ 5 At a doctor's appointment roughly six months after the Work Accident, Fogleman complained of "pain and numbness in her right leg extending to the foot," in addition to her ongoing knee and hip pain. A lumbar magnetic resonance imaging (MRI) revealed "multilevel degenerative disc disease" in Fogleman's spine.

¶ 6 Fogleman received diagnoses for her ailments from a number of other physicians. One doctor concluded that Fogleman was "probably 100%" impaired from the Work Accident. Another found that the "original complaints were reasonably caused by [the Work Accident] but that current presentation no longer correlates with ... the original condition." That physician also concluded, "The current clinical findings are atypical of the original medical condition and cannot reasonably be causally associated."

¶ 7 Fogleman applied for workers' compensation benefits, and as part of the proceedings, the parties submitted Fogleman's medical history. Due to the divergent medical conclusions in Fogleman's medical records, the administrative law judge (the ALJ) assigned a medical panel to examine Fogleman and opine on her condition.

¶ 8 The panel examined Fogleman and reviewed her medical records. The panel issued a report, finding,

[Fogleman's] hands have significantly improved and are no longer painful. She has occasional numbness when using the hands in certain ways. The contusions suffered to the hands at the time of injury have healed. The [pain in her] knees continue[s] to be a problem.... There is pain in the anterior aspect of the knee, patellar crepitus, and a mild limp. Although MRI examinations have failed to show injury to the joint surfaces of the knees, medications and physical therapy have been administered without a pain relieving effect, the right knee continues to be painful. It has been given the diagnosis of traumatic chondrosis and chondromalacia.... This has not been demonstrated on the MRI examinations.

Since the injury, she has also developed right hip pain.... This hip pain was not noted on the initial examination, but, [in later examinations] it had become notable.... It continues to be a painful problem.

In response to a specific question posed by the ALJ, the medical panel concluded that there was "a causal connection between the injuries to the knees, hands, and right hip and [the Work Accident]," but that there was "no connection between the back pain and sciatica and [the Work Accident]."

¶ 9 The medical panel also responded to other specific questions. The medical panel opined that: (1) Fogleman had suffered a two percent whole-person impairment as a result of the Work Accident; (2) "[t]he majority of patients, after such an injury, would have returned to full function some weeks after [the Work Accident]"; and (3) Fogleman's "depression and anxiety compound her current concerns." The panel also stated that "[n]o objective test[s] have shown clear injury.... [But] Fogleman has not been able to return to work function." The panel recommended maximum restrictions on any work Fogleman might perform of "no deep knee bends, no lifting greater than 30 pounds except on an occasional basis, and no excessive stair climbing (more than 3 times per four hour shift)."

¶ 10 The ALJ deemed "the opinion of the medical panel to be the persuasive evidence to resolve the conflicts in medical conclusions between various physicians in the case." Based on the medical panel report, the ALJ found that as a result of the Work Accident, Fogleman suffered an injury to her hands, right hip, and knees; that the injury to her hands had completely healed; and that her hip and knees had "reached a point of medical stability." The ALJ concluded that Fogleman suffered a two percent whole-person impairment as a result of the Work Accident. The ALJ also adopted the medical panel's finding with regard to Fogleman's maximum work restrictions.

¶ 11 The ALJ granted Fogleman temporary total disability compensation from the date of the Work Accident to the date of the Work Accident impairments' medical stabilization. The ALJ also awarded permanent partial disability compensation for Fogleman's Work Accident impairments and awarded compensation for medical treatment related to Fogleman's hand and hip injuries.

¶ 12 However, the ALJ denied Fogleman's permanent total disability claim. The ALJ concluded that Fogleman had not established any of the three elements a claimant is required to prove to qualify for permanent total disability compensation. See Utah Code Ann. § 34A–2–413(1)(b) (LexisNexis Supp. 2015).³ The ALJ ruled that Fogleman had not established that she had sustained a significant impairment or combination of impairments as a result of the Work Accident, the first element of a permanent total disability compensation claim. See id. § 34A–2–413(1)(b)(i). The ALJ found that the injury to Fogleman's hands, knees, and hip had stabilized and only created "minimal [physical] restrictions" for Fogleman. The ALJ did not include Fogleman's back injury in the significant impairment analysis because it was not "medically caused by [the Work Accident]."

¶ 13 The ALJ also held that Fogleman had not established a permanent total disability or that the Work Accident was the "direct cause" of a permanent total disability, the second and third elements of a permanent total disability compensation claim. See id. § 34A–2–413(1)(b)(ii)–(iii). Rather, the ALJ concluded that Fogleman's back injury, which the ALJ found to be unrelated to the Work Accident, was the cause of the "mobility and pain problems that are responsible for the disability that keeps [Fogleman] from finding employment."

¶ 14 Fogleman sought the Board's review of the ALJ's order. The Board affirmed the ALJ's ruling. It concluded, among other things, that Fogleman did not sustain a significant impairment or combination of impairments from the Work Accident. The Board focused on the Work Accident impairments and their effect on Fogleman's ability to perform her prior work activities.

¶ 15 The Board, like the ALJ, did not consider conditions that were not found to be a result of the Work Accident. It then concluded that the Work Accident impairments "do not significantly impair [Fogleman's] ability to do the type of office work she has mainly performed since 1991." And, because the Work Accident caused Fogleman only "minor injuries" that did not affect her ability to engage in her prior work activities, it held that Fogleman's two percent whole-person impairment did not constitute a significant impairment under Utah Code section 34A–2–413(1)(b)(i). Accordingly, the Board affirmed the ALJ's denial of Fogleman's claim for permanent total disability compensation. Fogleman now seeks review of the Board's decision.

ANALYSIS⁴

I. The Board's Denial of Fogleman's Claim for Permanent Total Disability Compensation

A. Utah's Permanent Total Disability Compensation Statute

¶ 16 Before turning to Fogleman's arguments, we review the statutory framework governing claims for permanent total disability compensation. To qualify for permanent total disability benefits, an employee must prove three statutory elements by a preponderance of the evidence. Utah Code Ann. § 34A–2–413(1)(b) (LexisNexis Supp. 2015). The employee must establish that:

(i) the employee sustained a significant impairment or combination of impairments as a result of the industrial accident ... that gives rise to the permanent total disability entitlement;

(ii) the employee has a permanent, total disability; and

(iii) the industrial accident ... is the direct cause of the employee's permanent total disability.

Id. To establish the second element—a permanent, total disability—the employee must also...