Rouse v. Lab. Comm'n

551 P.3d 1014

2024 UT App 77

Darlene ROUSE, Petitioner,

v.LABOR COMMISSION, Walmart, and New Hampshire Insurance Company, Respondents.

No. 20220797-CA

Court of Appeals of Utah.

Filed May 23, 2024

Original Proceeding in this Court

Loren M. Lambert, Midvale, Attorney for Petitioner

David H. Tolk, Salt Lake City, Attorney for Respondents Walmart and New Hampshire Insurance Company

Judge John D. Luthy authored this Opinion, in which Judges Michele M. Christiansen Forster and Amy J. Oliver concurred.

Opinion

LUTHY, Judge:

¶1 Darlene Rouse worked for Walmart, and Walmart accommodated her various physical limitations so that she could perform her work. Rouse then sustained an industrial injury. She brought a claim against Walmart and its insurer, New Hampshire Insurance Company, (collectively, Walmart) for—among other things—permanent total disability (PTD) compensation. The administrative law judge (ALJ) over her case submitted the relevant medical questions to a medical panel. The medical panel issued a report concluding that despite the fact that Rouse "may have some residual swelling" in her leg, she was capable of performing her previous job duties and did not suffer "any sort of permanent disability" attributable to the industrial accident. The ALJ denied Rouse’s claim for PTD compensation, reasoning that Rouse failed to satisfy one of the statutory elements of a PTD claim. Rouse appealed that decision to the Appeals Board of the Labor Commission (the Appeals Board), which affirmed the ALJ’s order. The Appeals Board determined that Rouse failed to prove PTD based on the element of PTD the ALJ found dispositive and based on another element the ALJ had not addressed. Rouse now seeks judicial review.

¶2 We determine that Rouse’s due process rights were not violated when the Appeals Board reached an element of PTD the ALJ had not addressed and that the Appeals Board did not err in its PTD determination. We also conclude that the ALJ’s evidentiary decisions that Rouse contests did not constitute abuses of the ALJ’s discretion. Therefore, we decline to disturb the Appeals Board’s decision.

BACKGROUND

Rouse’s Industrial Injury

¶3 Rouse worked part time for Walmart (two eight-hour shifts per week) "retrieving inventory from a warehouse." Before the industrial accident, Rouse received accommodations in her work. She had physical limitations related to "a history of leg problems," including a vein condition for which she wore compression stockings. Walmart allowed her to use a motorized cart, which reduced the amount of walking she had to do, though she estimated that she still walked five to six miles per shift and climbed stairs three or four times per hour. Walmart also provided her with a tool "to help her reach items stored on shelves."

¶4 On July 22, 2018, Rouse was walking down a warehouse aisle and pivoting on her left foot to turn when she slipped and fell on the concrete floor. After the fall, Rouse experienced a hematoma¹ in her left leg. In September of that year, an orthopedic surgeon (Surgeon) performed a debridement² of the hematoma. After the surgery, Rouse experienced swelling and mild paresthesia³ in her left leg.

¶5 Sometime after the industrial accident, Rouse returned to her job at Walmart. Walmart gave her ninety days "to return to her pre-injury ‘full duty’ status." She resumed her use of a motorized cart and reaching tool, and she was also permitted to sit on a stool as needed and elevate her left leg during periods of her shift. In March 2019, however, Walmart informed Rouse that it could no longer accommodate her, and it terminated her employment.

Rouse’s Application for PTD Compensation

¶6 In February 2020, Rouse filed an application with the Labor Commission for, among other things, PTD compensation. In March 2021, the assigned ALJ noted that the case involved "conflicting expert opinions as to whether [Rouse’s] industrial injury [had] resulted in permanent work restric- tions." The ALJ then appointed a medical panel.

Walmart’s Motion to Exclude Live Testimony from Rouse’s Expert

¶7 Rouse filed a notice indicating that she planned to present live testimony from a physical therapist (Physical Therapist) at her upcoming hearing before the ALJ. Walmart then filed a motion in limine seeking an order "precluding [Rouse] from presenting live expert testimony from [Physical Therapist] during the administrative hearing." Walmart argued that because "[t]he Labor Commission requires the parties to prepare and submit a joint medical records exhibit containing all pertinent medical evidence" and because "[t]he conclusions and analysis of [Physical Therapist were] contained in his … report, which [would] be included in the joint medical records exhibit," there was "no demonstrated need for [the ALJ] to take live testimony from this medical expert witness."

¶8 The ALJ issued an order stating that "[i]t is the custom and practice of the Labor Commission to require a petitioner to make her case through the medical records of her medical providers, not through their sworn testimony at [a] hearing" and that "[t]he administrative forum simply cannot accommodate live testimony from medical providers." The ALJ also noted that Rouse had "the opportunity to use discovery to obtain— and even to create—records that evidence the nature of her physical therapy, the results of her physical therapy, and the impressions and opinions of [Physical Therapist]." Accordingly, the ALJ granted Walmart’s motion in limine.

The Medical Panel Report

¶9 The medical panel issued a report in July 2021. The following is a summary of the medical treatment and opinions of medical providers related to Rouse’s left-leg injury that the medical panel recounted in its report:

• In October 2018 a doctor hired by Walmart (Doctor 1) conducted a medical examination of Rouse and recorded a diagnosis of "left lower extremity post-traumatic hematoma secondary to the industrial accident … and left calf persistent swelling secondary to sequela⁴ of both the surgery and the industrial injury." Doctor 1 indicated that Rouse "had not returned to her pre-injury status" and had not reached medical stability. He recommended restrictions, including not standing for longer than forty-five minutes at a time, not lifting anything over ten pounds, and avoiding kneeling and squatting for six weeks.

• An MRI performed in March 2019 identified fluid collection beneath the skin in the soft tissue in front of Rouse’s shinbone just below the knee. There was diffuse fluid collection and swelling in the tissues below the skin in Rouse’s lower left leg, but there was no evidence of bone inflammation, significant muscle inflammation, or a rare bacterial infection.

• In May 2019 a second doctor (Doctor 2) reviewed Rouse’s medical records and opined that "the swelling and residual hematoma" visible on Rouse’s MRI "did not require further treatment."

• In June 2019 another doctor hired by Walmart (Doctor 3) conducted a medical examination and attributed Rouse’s "mild left persisting calf erythema⁵ and swelling and mild decreased sensation" to the industrial accident. "He opined that [Rouse’s] industrial injuries reached medical stability as of 6/26/19 with a 1% whole person impairment rating."

• In February 2020 Surgeon "stated that [Rouse’s] industrially-caused post-traumatic hematoma necessitated the following permanent work restrictions:

standing as tolerated [for] up to four hours per day, walking as tolerated with breaks, driving a cart as needed, and changing positions frequently." He also opined that Rouse’s injury "reached medical stability on 6/7/19." He "concluded that [Rouse] would not be able to return to the same work she had been doing prior" to the industrial accident.

• In July 2020 Rouse underwent a functional capacity evaluation with Physical Therapist. Physical Therapist determined that Rouse "require[d] work accommodations" and "would be unable to complete a full eight-hour workday." He also indicated that Rouse "would likely need to be absent from work at least one to two days each week in order to recover from symptom flare-ups, even if she worked no more than three hours per day."

• In September 2020 yet another doctor hired by Walmart (Doctor 4) conducted a medical examination and diagnosed Rouse with "left lower leg hematoma, resolved with residual intermittent swelling; bilateral lower extremity venous insufficiency/peripheral vascular disease, preexisting and unrelated to the industrial injury; [and] spinal stenosis with neurogenic claudication⁶ causing left lower extremity numbness and tingling, unrelated to the industrial injury." Doctor 4 acknowledged that Rouse’s industrial injury "likely worsened the swelling in [Rouse’s] left lower extremity; however, she stated that the increased swelling would not translate to a disability greater than what was present prior to the accident." She "concluded that [Rouse’s] industrial injury reached medical stability [on] 7/26/19 with a 1% whole person disability rating and did not thereafter necessitate work restrictions on an industrial basis."

¶10 The medical panel stated that Rouse "may have some residual swelling related to the hematoma in the anterior right leg⁷ and would benefit from wearing a compression stocking with activity," but it acknowledged that "she was already wearing these stockings prior to her injury" and found that "[s]he clearly had pre-existing lower extremity swelling, likely related to her age, body habitus, and venous insufficiency." The panel opined that Rouse "reached medical stability as of June 27, 2019," though it noted that she had "some residual numbness in the anterior left leg and some erythema that had been unchanged for months" at that point. The panel then stated that Rouse had "no change in her present work restrictions[ ] as a result of this injury" and that "[s]he is able to work full time and would have the same standing and walking ‘restrictions’ she previously...