December 27, 2013, Utah Court of Appeals Case Summaries

Commonwealth Property v. U.S. Bank, 2013 UT App 300, No. 20111003-CA (December 27, 2013)

ISSUES: Appellate Briefing

Judge Orme,

This case was mistakenly assigned to two district court judges.  The first judge requested supplemental briefing, the second ruled on the motion without requesting supplemental briefing.  The first judge, after learning that the second judge had ruled on the motion, recused himself and endorsed the second judge’s ruling.  Appellant challenges the second judge’s ruling granting summary judgment.

Commonwealth protests the result of this aberrational sequence of events because “the deciding judge had no [supplemental] memoranda, and the judgment was rubberstamped without any evidence any judge considered the memoranda.” However, Commonwealth does not provide any additional analysis or legal authority to support its contention that the procedural irregularity is fatal to the summary judgment, and this failure constitutes inadequate briefing. See Utah R. App. P. 24(a)(9) (stating that briefs must contain reasoned analysis based upon relevant legal authority). See also Schefski ex rel. Coleman v. Stevens, 2000 UT 98, ¶ 7, 17 P.3d 1122 (discussing what constitutes inadequate briefing and noting that the court will not address arguments that are not adequately briefed). As a result, we do not further address Commonwealth’s criticism of the procedural irregularities below.

At ¶ 3.

The Court refuses to consider the Appellant’s arguments on the merits of the summary judgment ruling because they were not addressed in Appellant’s opening brief stating:

“It is well settled that ‘issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court.’” Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (quoting Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540).

At ¶ 4.

Oliver v. Labor Commission, 2013 UT App 301, No. 20121069-CA (December 27, 2013)

ISSUES: Employment Law, Disability Benefits, Subsequent Aggravation

Judge Orme,

In this consolidated case, Angela K. Oliver (Employee)1 seeks to overturn the decision of the Utah Labor Commission Appeals Board denying her claim for permanent total disability benefits. Safeway, which employed Employee years ago, challenges the composition and impartiality of the medical panel. We set aside the Board’s order and direct it to reconsider Employee’s claim in accordance with the guidance offered in this opinion.

At ¶ 1.

Employee asserts that the Board applied an incorrect legal standard when it found that she was not permanently and totally disabled as a result of her 1987 industrial injury. The Board applied the standard originally articulated in United Park City Mines Co. v. Prescott, 393 P.2d 800 (Utah 1964). With regard to permanent total disability claims, the Prescott court stated as follows:

[A] workman may be found totally disabled if by reason of the disability resulting from his injury he cannot perform work of the general character he was performing when injured, or any other work which a man of his capabilities may be able to do or to learn to do . . . .

Id. at 801–02. The Board interpreted this standard to mean that because Employee “was able to obtain the necessary training and work [as a nurse] for many years following the 1987 accident,” she was forever barred from bringing permanent total disability claims based on that accident. While it is true that Employee would have been barred under this rule from bringing a claim while she was actually employed as a nurse, we disagree that her return to the workforce forever precluded her from claiming permanent total disability based on her original compensable injury.

At ¶ 9.

Our decision in Intermountain Health Care, Inc. v. Board of Review, 839 P.2d 841 (Utah Ct. App. 1992), supports this conclusion. In Intermountain, an employee of Intermountain Health Care suffered a compensable back injury in—coincidentally—1987. Id. at 842. The injury occurred while the employee was lifting a desk at the request of her supervisor. Id. The employee was seen by several specialists and treated conservatively over the course of approximately one year. Id. The employee subsequently found new employment at Interwest Medical and worked there from October 1988 until April 1989. Id. However, she injured her back again in April 1989 while bending over to pick up her four-month-old grandchild. Id. at 842–43. Despite her ability to return to work in a position “of the general character [she] was performing when injured,” see Prescott, 393 P.2d at 801–02, we nonetheless concluded that the ALJ properly found that her original 1987 industrial injury was the cause of the subsequent aggravation of that injury in 1989, Intermountain, 839 P.2d at 847–48. Thus, the mere occurrence of vocational rehabilitation and a reentry into the workforce in Intermountain did not forever bar a new workers’ compensation claim based on the employee’s prior industrial accident.

At ¶ 10.

Rather, when an individual experiences a subsequent aggravation of an initial compensable workplace injury arising “out of or in the course of his employment,” Utah Code Ann. § 35-1-45 (Michie Supp. 1987), the question of additional compensation hinges on whether the “‘subsequent injury is . . . a natural result of a compensable primary injury.’” See Intermountain, 839 P.2d at 845 (emphasis in original) (quoting Mountain States Casing Servs. v. McKean, 706 P.2d 601, 602 (Utah 1985) (per curiam)). Here, there is no dispute that Employee had a compensable workplace accident in 1987. Indeed, workers’ compensation benefits were paid to Employee between 1987 and 1989. The key consideration, then, is whether Employee’s subsequent 2004 injury is compensable as being a “natural result” of the original 1987 injury.

At ¶ 11.

Utah courts have established that “once benefits are properly awarded, the employer is responsible for ‘all medical[ costs] resulting from [the compensable] injury,’ including costs resulting from subsequent aggravations to the compensable workplace injury.” McKesson Corp. v. Labor Comm’n, 2002 UT App 10, ¶ 21, 41 P.3d 468 (alterations in original) (quoting McKean, 706 P.2d at 602). However, “responsibility for costs resulting from subsequent aggravations to compensable workplace injuries is not automatic. The claimant must first demonstrate that the subsequent aggravation is the ‘natural result’ of the primary workplace injury or accident.” Id. ¶ 21 n.3 (quoting McKean, 706 P.2d at 602). “Stated more precisely, the claimant must establish that the subsequent aggravation is causally linked to the primary compensable injury.” Id. ¶ 18 n.2.

At ¶ 12.

The “natural result” inquiry is properly conducted through “an analysis of the facts surrounding the subsequent injury and analysis of the connection between the subsequent injury and the original compensable industrial injury.” Intermountain, 839 P.2d at 846. And the relationship between the two events must be established by a preponderance of the evidence. See Allen v. Industrial Comm'n, 729 P.2d 15, 23 (Utah 1986) (“[T]he standard to prove causal connection is [by a] preponderance of the evidence.”); Large v. Industrial Comm’n, 758 P.2d 954, 956 (Utah Ct. App. 1988) (same).

At ¶ 13.

We conclude that the Board applied an incorrect legal standard in concluding that Employee was not permanently and totally disabled as a result of her 1987 industrial injury. As more fully explained above, the key to properly making this determination is not whether Employee went back to work after 1987 but whether her 2004 injury was a natural result of the 1987 injury. We are not best suited to make this determination in the first instance. Rather, the Board is in the best position to analyze the “facts surrounding [Employee’s] subsequent injury and . . . the connection between the subsequent injury and the original compensable industrial injury.” Intermountain, 839 P.2d at 846.

At ¶ 14.

In view of our disposition, we do not reach the other issues before us. We do recognize, however, that Safeway argues in its petition for review that a new medical panel should have been appointed when the ALJ was so directed, not the same medical panel with leave to invite the participation of additional doctors. The Board recognized the problematic nature of a medical panel that was not actually new, but found it unnecessary “to address any problems with the medical panel or Safeway’s contention that the panel was not impartial in the proceedings on remand.” While we do not otherwise address this issue, we note that the Board may find it prudent to renew its direction that a new medical panel be appointed to consider the causal link between Employee’s 1987 and 2004 injuries. It may well be that Dr. Goldman’s objectivity in the case at hand is compromised by his opinion expressed in the prior case to the effect that Employee’s 2004 injures were attributable to the 1987 accident.

At footnote 4.