Utah: Court OKs Use of Medical Panel Findings to Award Disability Benefits

By SHRM Online staff Dec 31, 2014

A Utah court upheld the reliance of an administrative law judge (ALJ) on findings by an appointed medical panel to award permanent total disability benefits to an employee injured on the job.

On Feb. 17, 2009, while working as a drywall installer for Dannys Drywall, Rafael Suastegui Bernal fell off a ladder and suffered extensive bone fractures and other injuries. In April 2010, Bernal filed an application for permanent total disability benefits. After a hearing, the ALJ decided to require the employee to have an independent medical review because of conflicting medical evidence concerning his medical and functional limitations before making a final decision on his eligibility for disability benefits. The ALJ appointed a medical panel, consisting of specialists in pain management and psychiatry, to conduct the review.

The medical panel diagnosed Bernal with a number of “medical conditions, as a direct result of the Feb. 17, 2009 industrial accident,” including traumatic brain injury and chronic pain. The panel determined that he had a variety of restrictions related to lifting, sitting, and other activities. According to the panel, it was unlikely that the employee could be a productive worker for more than four hours a day.

In response to the medical panel report, Danny’s Drywall hired a physiatrist, Dr. Jeff Chung, to review and critique the report. The company filed an objection to the medical panel report, citing Chungs critique and arguing (1) that the panel violated the charging order by evaluating matters not before it, (2) that the report was not based on reasonable medical probability, and (3) that other substantial evidence supported a finding contrary to the panels finding.

The ALJ rejected all of the company’s arguments and admitted the medical panel report into the evidentiary record. The ALJ adopted the medical panels opinion regarding Bernal’s functional and medical capacity restrictions caused by the industrial accident and ultimately determined that he was eligible for permanent total disability benefits.

Danny’s Drywall filed a motion for review with the state’s Labor Commission, raising the same arguments as in its objection to the medical panel report, but the commission rejected its arguments and affirmed the ALJ’s decision. The company filed a petition for judicial review.

Danny’s Drywall argued that the commission abused its discretion in adopting the medical panel report because the panel disregarded the charging order by evaluating medical causation, diagnosis, and past and future medical care. The company contended that the ALJs request that the panel evaluate Bernal’s “permanent physical restrictions as a result of injury from the industrial accident” did not authorize the panel to consider the issues of causation and diagnosis.

The court, however, agreed with the commission that the ALJs charge to the panel consisted of several components, including the identity of the employee’s medical problems, the likelihood that those problems were “a result of” the industrial accident, and an assessment of the physical restrictions resulting from those work-related injuries. The court noted it would be difficult to understand how the panel could perform its job without addressing the physical restrictions and whether they were caused the injuries sustained in the industrial accident. Because the medical panel was responsive to the ALJs charging order and because the commission was the ultimate fact finder, the court concluded that the commission did not exceed its discretion in determining that the causation and diagnosis of Bernals conditions were issues properly before the medical panel.

The court disagreed with the company’s second objection, stating that it was evident that the medical panels opinion was based on the panels assessment of medical probability.

Danny’s Drywall also claimed that the commission erroneously adopted the medical panel report because the panel relied on statements made during its examination of the employee. When the panel interviewed Bernal, his family members helped him answer questions and stated their observations of his symptoms. The company asserted that the medical panel should not have considered these comments because they were outside the record. The company asserted that the medical panels consideration of the family membersstatements violated its statutory right to cross-examine witnesses. However, the court found that Utah law did not give Danny’s Drywall the opportunity to cross-examine the individuals present at the medical panels examination of the employee.

Danny’s Drywall also contended that the commission violated its right to constitutional due process by permitting the medical panel to solicit information from Bernal’s family members without giving it an opportunity to cross-examine them. The court disagreed because the company did not demonstrate that it sufficiently preserved the issue during the proceedings before the commission.

Finally, the court ruled that Danny’s Drywall failed to demonstrate that the commissions findings were not supported by substantial evidence, upholding the commission’s final order.

Dannys Drywall v. Labor Comm’n, Utah Ct. App., No. 20121077-CA (Nov. 20, 2014).


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