Fogleman v. Labor Commission

2015 UT App 294
THE UTAH COURT OF APPEALS
S ANDRA GAIL F OGLEMAN ,
Petitioner,
v.
LABOR C OMMISSION , K OLOB C ARE AND R EHABILITATION C ENTERS,
AND PENNSYLVANIA M ANUFACTURERS
A SSOCIATION I NSURANCE C OMPANY ,
Respondents.
Opinion
No. 20141137-CA
Filed December 10, 2015
Original Proceeding in this Court
Virginius Dabney and Sonia Huntsman Ickes,
Attorneys for Petitioner
Jaceson R. Maughan, Attorney for Respondent
Labor Commission
Eric J. Pollart, Christin Bechmann, and Mark A.
Riekhof, Attorneys for Respondents Kolob Care and
Rehabilitation Centers and Pennsylvania
Manufacturers Association Insurance Company
JUDGE JOHN A. PEARCE authored this Opinion, in which J UDGES
GREGORY K. O RME and J. F REDERIC VOROS JR . concurred.
PEARCE, Judge:
Sandra Gail Fogleman seeks judicial review of the denial	¶1
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

Fogleman v. Labor Commission
20141137-CA 	2 	2015 UT App 294
accident. 	Accordingly, 	we 	decline 	to 	disturb 	the 	Board’s
decision.
BACKGROUND1
Kolob 	Care 	and 	Rehabilitation 	Centers 	(Kolob) 	is 	a	¶2
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.”
While delivering mail to the mailbox one day, Fogleman	¶3
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.”
After a coworker cleaned her wounds, Fogleman finished	¶4
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.
1. In reviewing the Board’s decision, “we view the facts in the
light most favorable to [the Board’s] findings.” Swift Transp. v.
Labor Comm’n, 2014 UT App 104, ¶ 2 n.1, 326 P.3d 678. Due to the
“extensive medical records presented in the record, we discuss
only 	those 	injuries 	and 	medical 	diagnoses 	necessary 	to
understand the issues presented.” See id.
2. At the time of Fogleman’s industrial accident, Kolob was
insured by Pennsylvania Manufacturers Association Insurance
Company.

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20141137-CA 	3 	2015 UT App 294
At a doctor’s appointment roughly six months after the	¶5
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.
Fogleman received diagnoses for her ailments from a	¶6
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.”
Fogleman applied for workers’ compensation benefits,	¶7
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.
The panel examined Fogleman and reviewed her medical	¶8
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

Fogleman v. Labor Commission
20141137-CA 	4 	2015 UT App 294
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].”
The 	medical 	panel 	also 	responded 	to 	other 	specific	¶9
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).”
The ALJ deemed “the opinion of the medical panel to be	¶10
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

Fogleman v. Labor Commission
20141137-CA 	5 	2015 UT App 294
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.
The ALJ granted Fogleman temporary total disability	¶11
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.
However, the ALJ denied Fogleman’s permanent total	¶12
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
3. “[I]n workers’ compensation claims, the law existing at the
time of the injury applies in relation to that injury.” Ameritemps,
Inc. v. Labor Comm’n, 2005 UT App 491, ¶ 1 n.1, 128 P.3d 31
(citation and internal quotation marks omitted). Although Utah
Code section 34A-2-413 has been amended since Fogleman’s
injury, the amendments do not affect the particular subsections
at issue in this case. Compare Utah Code Ann. § 34A-2-413(1)(b)–
(c) (LexisNexis Supp. 2010), with id. (2015). For convenience, we
cite the most recent version of the statute.

Fogleman v. Labor Commission
20141137-CA 	6 	2015 UT App 294
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].”
The ALJ also held that Fogleman had not established a	¶13
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.”
Fogleman sought the Board’s review of the ALJ’s order.	¶14
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.
The Board, like the ALJ, did not consider conditions that	¶15
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.

Fogleman v. Labor Commission
20141137-CA 	7 	2015 UT App 294
ANALYSIS4
I. The Board’s Denial of Fogleman’s Claim for Permanent Total
Disability Compensation
A. 	Utah’s Permanent Total Disability Compensation Statute
Before turning to Fogleman’s arguments, we review the	¶16
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 	demonstrate, 	by 	a
preponderance of the evidence, that:
(i) 	the employee is not gainfully employed;
4. Fogleman raises a number of issues on appeal. We identify the
appropriate standard of review for each issue in the section of
our analysis addressing that issue.

Fogleman v. Labor Commission
20141137-CA 	8 	2015 UT App 294
(ii) 	the employee has an impairment or combination of
impairments that limit the employee’s ability to do
basic work activities;
(iii) 	the industrial or occupationally caused impairment
or 	combination 	of 	impairments 	prevent 	the
employee from performing the essential functions
of the work activities for which the employee has
been 	qualified 	until 	the 	time 	of 	the 	industrial
accident . . . that is the basis for the employee’s
permanent total disability claim; and
(iv) 	the 	employee 	cannot 	perform 	other 	work
reasonably available, taking into consideration the
employee’s [age, education, past work experience,
medical capacity, and residual functional capacity.]
Id. § 34A-2-413(1)(c).
An employee’s failure to establish any one of the elements	¶17
defeats her claim for permanent total disability compensation.
See id. § 34A-2-413(1)(b)–(c); see also Prows v. Labor Comm’n, 2014
UT App 196, ¶¶ 12, 19, 333 P.3d 1261 (upholding the Utah Labor
Commission’s denial of permanent total disability compensation
because the employee did not establish one element).
B. 	Fogleman’s 	Challenges 	to 	the 	Board’s 	Denial 	of 	Her
Permanent Total Disability Compensation Claim
1. 	The 	Board’s 	Interpretation 	of 	Utah 	Code 	Section 	34A-2-
413(1)(b)(i)
Fogleman challenges the Board’s conclusion that she did	¶18
not sustain a significant impairment. See Utah Code Ann. § 34A-
2-413(1)(b)(i) (LexisNexis Supp. 2015). Fogleman argues that the
Board erred by not considering her “as an individual, taking all
of 	her 	issues, 	including 	those 	sustained 	from 	[the 	Work
Accident], into consideration.” In essence, Fogleman contends

Fogleman v. Labor Commission
20141137-CA 	9 	2015 UT App 294
the Board erred in interpreting the statute as requiring it to
disregard impairments not causally related to the Work Accident
in 	determining 	whether 	she 	had 	suffered 	a 	significant
impairment. Whether the Board correctly interpreted Utah Code
section 34A-2-413(1)(b)(i) is a matter of law that we review for
correctness, “granting little or no deference to [the Board’s]
determination.” Utah Chapter of the Sierra Club v. Board of Oil, Gas,
& Mining, 2012 UT 73, ¶ 9, 289 P.3d 558 (citation and internal
quotation marks omitted).
Fogleman asserts that the Board should have considered	¶19
her 	back 	injury 	as 	well 	as 	her 	anxiety 	and 	depression 	to
determine whether she had sustained a significant impairment.
The 	Board 	recognized 	that 	Fogleman 	suffered 	from 	those
conditions, but did not include them in its analysis because it
concluded they were not causally related to the Work Accident.
For the purpose of determining whether Fogleman had	¶20
suffered a significant impairment, the Board did not err by
reading the statute as requiring it to disregard impairments it
found 	to 	not 	be 	causally 	related 	to 	the 	Work 	Accident.
Subsection 413(1)(b)(i) requires the employee to establish that
she 	“sustained 	a 	significant 	impairment 	or 	combination 	of
impairments as a result of the industrial accident . . . that gives
rise to the permanent total disability entitlement.” Utah Code
Ann. 	§ 	34A-2-413(1)(b)(i) 	(emphases 	added). 	By 	its 	plain
language, then, the statute requires Fogleman to show that her
impairment or combination of impairments was sustained “as a
result of” the Work Accident and that it “gives rise to the
permanent total disability.” See id.; see also Marion Energy, Inc. v.
KFJ Ranch P'ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (“[W]hen faced
with a question of statutory interpretation, our primary goal is to
evince the true intent and purpose of the Legislature. The best
evidence [of that] is the plain language of the statute itself.”
(citations and internal quotation marks omitted)).

Fogleman v. Labor Commission
20141137-CA 	10 	2015 UT App 294
Fogleman’s 	argument 	does 	not 	address 	the 	plain	¶21
language of the statute. Nor does she address cases in which this
court has appeared to endorse the Board’s reading of the statute.
See, e.g., Clawson v. Labor Comm’n, 2013 UT App 123, ¶ 10 & n.4,
302 	P.3d 	1247 	(concluding 	that 	the 	Board 	did 	not 	err 	by
disregarding an employee’s preexisting medical conditions that
were unrelated to the work accident in its permanent total
disability analysis but setting aside the Board’s decision on other
grounds).5 In the absence of an argument squarely addressing
the statute’s plain language and the cases that cut against her
position, Fogleman cannot sustain her burden on appeal of
demonstrating that the Board misinterpreted the statute.6
5. Fogleman does posit that many cases support her argument.
See Hardman v. Salt Lake City Fleet Mgmt., 725 P.2d 1323 (Utah
1986); Kaiser Steel Corp. v. Industrial Comm’n, 709 P.2d 1168 (Utah
1985); Marshall v. Industrial Comm’n, 681 P.2d 208 (Utah 1984);
USX Corp. v. Industrial Comm’n, 781 P.2d 883 (Utah Ct. App.
1989). However, these cases are of little assistance to our analysis
here, 	as 	each 	interpreted 	a 	prior 	version 	of 	a 	workers’
compensation statute that did not require the claimant to prove a
significant 	impairment 	or 	combination 	of 	impairments as a
result of the industrial accident.
6. Fogleman’s argument may be read to assert that the Board
should have considered her other ailments because they pre-
existed 	the 	Work 	Accident 	and 	contributed 	to 	her 	overall
condition following the Work Accident. But, Fogleman does not
support this contention with analysis of the current version of
the statute or cases interpreting that statute. Fogleman cannot
sustain her burden on appeal without developing an argument
based upon the current statute. See, e.g., State v. Robison, 2006 UT
65, ¶ 21, 147 P.3d 448 (noting that the appellant bears the burden
of persuasion on appeal and that an appellate court will not
“do the heavy lifting” for the appellant); Hi-Country Estates
(continued…)

Fogleman v. Labor Commission
20141137-CA 	11 	2015 UT App 294
Therefore the Board did not err by considering only those	¶22
impairments that were the result of the Work Accident in its
significant impairment determination under Utah Code section
34A-2-413(1)(b)(i).
2. The Board’s Significant-Impairment Determination
Fogleman also argues that the Board erred in concluding	¶23
that 	her 	two 	percent 	whole-person 	impairment 	did 	not
constitute a significant impairment.
a. Standard of Review
Determining 	“whether 	a 	particular 	impairment 	is	¶24
‘significant’ . . . requires a court to evaluate the severity of the
impairment and determine whether the level of impairment
exceeds a minimum threshold.” Provo City v. Labor Comm’n, 2015
UT 32, ¶ 16, 345 P.3d 1242. This question is a mixed question of
law and fact that we review “either deferential[ly] or de novo,
depending on the nature of the particular mixed question.” Id.
¶ 17. The particular standard of review depends on three factors:
(1) the degree of variety and complexity in the facts
to which the legal rule is to be applied; (2) the
degree to which a trial court’s application of the
legal rule relies on facts observed by the trial judge,
such as a witness’s appearance and demeanor,
relevant to the application of the law that cannot be
adequately 	reflected 	in 	the 	record 	available 	to
appellate courts; and (3) other policy reasons that
weigh for or against granting [deference] to trial
courts.
(…continued)
Homeowners Ass’n v. Jesse Rodney Dansie Living Tr., 2015 UT App
218, ¶ 5, 359 P.3d 655.

Fogleman v. Labor Commission
20141137-CA 	12 	2015 UT App 294
Murray 	v. 	Labor 	Comm’n, 	2013 	UT 	38, 	¶ 	36, 	308 	P.3d 	461
(alteration in original) (citation and internal quotation marks
omitted). In Murray, the Utah Supreme Court analyzed the issues
presented by a mixed question of law and fact and, to determine
the particular standard of review, asked whether their resolution
was “fact-like”—i.e., the administrative tribunal is in a superior
position to decide the question—or “law-like”—i.e., the question
lends “itself to consistent resolution by a uniform body of
appellate precedent.” Id. ¶ 37 (citation and internal quotation
marks omitted).
In Provo City, the supreme court addressed an argument	¶25
similar to the one at issue here and determined that it was a fact-
like 	question, 	reviewed 	deferentially 	under 	a 	substantial
evidence standard. See 2015 UT 32, ¶¶ 18, 23–24. There, the court
reviewed 	the 	Board’s 	significant-impairment 	determination,
which was based on a six percent whole-person impairment, for
substantial 	evidence. 	Id. 	¶¶ 	23–24. 	Because 	the 	question
presented here does not differ materially from that in Provo City,
we review Fogleman’s challenge to the Board’s decision under a
substantial-evidence standard. See id. “A finding is supported by
substantial evidence when a reasonable mind might accept as
adequate 	the 	evidence 	supporting 	the 	decision.” 	Bailey 	v.
Retirement Bd., 2012 UT App 365, ¶ 2, 294 P.3d 577 (citation and
internal quotation marks omitted).
b. The Board’s Application of the Law to the Facts
Fogleman argues that the Board erred in finding that her	¶26
impairments did not constitute a significant impairment and by
failing to “include all of [her] work limitations as found by the
medical panel” in its significant-impairment determination.
Fogleman relies on two Utah Supreme Court cases to	¶27
argue that “a low percentage of physical impairment is not per
se less than [a] permanent total disability” and to argue that the
disability must be evaluated “in terms of the specific individual

Fogleman v. Labor Commission
20141137-CA 	13 	2015 UT App 294
who has suffered a work-related injury.” See Hardman v. Salt Lake
City Fleet Mgmt., 725 P.2d 1323 (Utah 1986); Kaiser Steel Corp.
v. Industrial Comm’n, 709 P.2d 1168 (Utah 1985).7 We readily
agree. We can envision situations in which a low-percentage
impairment or impairments could meet Utah Code section 34A-
2-413(1)(b)(i)’s 	significant-impairment 	standard. 	But 	these
considerations do not lead us to conclude, as Fogleman argues,
that 	the 	Board’s 	determination 	here 	is 	not 	supported 	by
substantial evidence.
Noting the disagreement between treating physicians, the	¶28
ALJ convened a medical panel. That panel reviewed the medical
records and examined Fogleman. The Board found the medical
panel report persuasive and expressly adopted it. In doing so,
the Board found, among other things, that Fogleman suffered
injuries to her hands, knees, and right hip, amounting to a two
percent 	whole-person 	impairment, 	and 	that 	her 	physical
restrictions did not prevent her from performing office work
similar to her duties at Kolob.
The medical panel also determined that Fogleman’s knee,	¶29
hand, and right hip injuries were medically causally related to
the Work Accident. It found that there were “no X-ray or
surgical abnormalities documented that related to [Fogleman’s]
impairments.” The panel also noted that Fogleman complained
of continued pain in her hip and right knee, but found that “[n]o
objective test[s] have shown clear injury,” and that a “normal
range of motion returned in less than a month after the injury.”
In 	light 	of 	that 	evidence, 	we 	cannot 	conclude 	the 	Board’s
7. It bears noting that Hardman v. Salt Lake City Fleet Management,
725 P.2d 1323 (Utah 1986), and Kaiser Steel Corp. v. Industrial
Commission, 709 P.2d 1168 (Utah 1985), were decided under a
prior statute that did not require a “significant impairment”
determination. See Hardman, 725 P.2d at 1325; Kaiser, 709 P.2d at
1170.

Fogleman v. Labor Commission
20141137-CA 	14 	2015 UT App 294
determination—that 	Fogleman’s 	two 	percent 	whole-person
impairment does not constitute a significant impairment—lacks
a substantial evidentiary basis.8
While Fogleman continues to have pain in her right knee	¶30
and hip, substantial evidence supports the Board’s finding that
those impairments’ maximum effect on her work abilities does
not prevent her from carrying out her prior day-to-day work
activities. 	Accordingly, 	we 	decline 	to 	disturb 	the 	Board’s
determination that Fogleman’s impairments do not “exceed[]
[the] minimum threshold,” see Provo City v. Labor Comm’n, 2015
UT 32, ¶ 16, 345 P.3d 1242, and thus do not constitute a
significant 	impairment 	under 	Utah 	Code 	section 	34A-2-
413(1)(b)(i).9
8. Fogleman also contends that the Board erred by failing to
include all of her work limitations “as found by the medical
panel 	(i.e. 	low 	back, 	gait 	abnormality, 	continuing 	pain,
avoidance of activities and establishing a tolerable lifestyle, pain
perception, depression, and anxiety).” We disagree. The Board
adopted the medical panel’s findings regarding the “maximum
restrictions” caused by her impairments and the panel’s two
percent whole-person impairment finding, among other things.
While the Board may not have specifically highlighted each
aspect of Fogleman’s impairments or provided an exhaustive list
of each of their manifestations, it adopted the findings of the
medical panel and made findings of fact. Only after the Board
made these findings, which are supported by substantial record
evidence, did it conclude that Fogleman’s impairments did not
constitute a significant impairment.
9. Fogleman also argues that the odd-lot doctrine requires an
evaluation 	of 	the 	Work 	Accident 	and 	non-Work 	Accident
impairments. “The odd lot doctrine allows [the Board] to find
permanent total disability when a relatively small percentage of
(continued…)

Fogleman v. Labor Commission
20141137-CA 	15 	2015 UT App 294
3. 	Fogleman’s Remaining 	Challenges Regarding 	the 	Board’s
Denial 	of 	Her 	Claim 	for 	Permanent 	Total 	Disability
Compensation
Fogleman raises a number of other challenges to the	¶31
Board’s denial of her permanent total disability compensation
claim. 	Because 	Fogleman 	has 	not 	carried 	her 	burden 	of
demonstrating that the Board erred in concluding that the Work
Accident 	impairments 	do 	not 	constitute 	a 	significant
impairment—a required element of her claim—we need not
address Fogleman’s remaining arguments. See supra ¶¶ 16–17.
Accordingly, we conclude that the Board did not err by	¶32
restricting its significant impairment analysis, under Utah Code
section 34A-2-413(1)(b)(i), to Fogleman’s impairments resulting
from the Work Accident. And the Board’s determination that
Fogleman’s 	impairments 	do 	not 	amount 	to 	a 	significant
(…continued)
impairment caused by an industrial accident is combined with
other 	factors 	to 	render 	the 	claimant 	unable 	to 	obtain
employment.” Zupon v. Industrial Comm’n, 860 P.2d 960, 963
(Utah Ct. App. 1993). The odd-lot doctrine requires the court to
determine “the extent to which [the employee’s impairment or
impairments] affects the employee’s ability to return to full
employment.” Olsen v. Labor Comm’n, 2011 UT App 70, ¶ 18, 249
P.3d 586. But, as we determined above, Fogleman has not carried
her burden to establish that she suffered from a significant
impairment under Utah Code section 34A-2-413(1)(b)(i). Thus,
the odd-lot doctrine does not come into play here. See generally
Mercado v. Labor Comm’n, 2014 UT App 268, ¶¶ 12–13, 339 P.3d
158 (holding that the Board had a “sufficient basis” for denying
the employee’s benefits under the odd-lot doctrine); Olsen, 2011
UT App 70, ¶¶ 11, 18–25 (reviewing the odd-lot doctrine’s
applicability 	to 	an 	employee’s 	claim 	for 	permanent 	total
disability benefits).

Fogleman v. Labor Commission
20141137-CA 	16 	2015 UT App 294
impairment is supported by substantial evidence. We decline to
disturb the Board’s denial of Fogleman’s claim for permanent
total disability compensation.
II. The Board’s Alleged Failure to Give Fogleman the “Benefit of
the Doubt”
Fogleman 	also 	argues 	that 	we 	should 	overturn 	the	¶33
Board’s decision because the “Board failed to properly consider
[the] long-standing rule of statutory construction applicable to
all industrial claims”—that “her claim be liberally construed in
favor of awarding benefits, and that any doubts raised from the
evidence be resolved in favor of her claim.” We are required to
“look closely to assure ourselves that [the Board] has liberally
construed and applied the [Workers’ Compensation Act] to
provide coverage and has resolved any doubt respecting the
right to compensation in favor of an injured employee.” Salt Lake
City Corp. v. Labor Comm’n, 2007 UT 4, ¶ 16, 153 P.3d 179.
Fogleman raised this argument before the Board. The	¶34
Board rejected it, reasoning that giving Fogleman the benefit of
the 	doubt 	and 	applying 	statutes 	liberally 	“does 	not 	mean
ignoring 	the 	persuasive 	medical 	evidence 	that 	[the 	Work
Accident] did not result in a significant impairment or render
[Fogleman] permanently and totally disabled.”
We agree with the Board. It is true that the Workers’	¶35
Compensation Act is “to be construed liberally, resolving any
doubt as to an employee’s right to compensation in favor of the
employee.” Murray v. Labor Comm’n, 2012 UT App 33, ¶ 6, 271
P.3d 192, aff’d on other grounds, 2013 UT 38, 308 P.3d 461. But, it is
nevertheless the burden of the employee to establish all of the
elements of a claim for permanent total disability compensation.
See Utah Code Ann. § 34A-2-413(1)(b)–(c) (LexisNexis Supp.
2015). For us to hold otherwise would ignore the plain language
of Utah Code section 34A-2-413(1), which requires the employee

Fogleman v. Labor Commission
20141137-CA 	17 	2015 UT App 294
to establish each element by a preponderance of the evidence.
See id.
The Utah Supreme Court has stated,	¶36
The 	benefit 	of 	the 	doubt 	owing 	to 	workers’
compensation claimants comes at the back end of
the 	litigation—after 	the 	judge 	(or 	commission)
makes a run at resolving disputed questions of fact,
at clarifying gray areas of law, and at applying the
law to the facts of the case at hand. In the rare case
where that process yields genuine doubt—in a
dead heat without an apparent winner—that doubt
should 	be 	resolved 	in 	favor 	of 	coverage. 	But
otherwise the judge (or commission) is oath-bound
to rule in favor of the party whose case is strongest
under the law as applied to the facts. Such a
judgment 	cannot 	be 	abandoned 	on 	the 	mere
presence of doubt about the matter.
Jex v. Labor Comm’n, 2013 UT 40, ¶ 56, 306 P.3d 799. In other
words, before the tie can go to the runner, there has to be a tie.10
10. We use this phrase cautiously. Apparently there is no rule
in the Major League Baseball Rulebook that expressly provides
that a tie actually goes to the runner. See Mark Dewdney,
“Come On, Blue, Tie Goes to the Runner!” No, It Does Not, Bleacher
Report (July 27, 2009), http://bleacherreport.com/articles/225160-
come-on-blue-tie-goes-to-the-runner-no-it-does-not (“‘A runner
acquires the right to an unoccupied base when he touches it
before he is out.’ The key word here is ‘before’. The instant that
ball touches the fielder’s mitt, if the runner was not there before
the ball, he must be called out—no leeway.”); David Wade, Inside
the Rules: Tie Goes to the Runner, The Hardball Times (Nov. 4,
2010), 	http://www.hardballtimes.com/tht-live/inside-the-rules-
tie-goes-to-the-runner/.

Fogleman v. Labor Commission
20141137-CA 	18 	2015 UT App 294
The Board did not err by concluding that Fogleman had	¶37
not established an 	entitlement to permanent total disability
compensation under Utah Code section 34A-2-413(1)(b)–(c). And
because Fogleman did not establish the necessary elements of a
permanent total disability claim, she is not entitled to a “benefit
of the doubt.”
III. Fogleman’s Anxiety and Depression
Fogleman next argues that the Board “erred by failing to	¶38
specifically include an award of treatment for [her] industrially-
compounded depression and anxiety.” Essentially, she contends
that this treatment should have been awarded because 	the
medical 	panel 	found 	medical 	causation 	between 	the 	Work
Accident and her anxiety and depression. Whether medical
causation has been established is an issue of fact, which we
review for substantial evidence. Cook v. Labor Comm’n, 2013 UT
App 286, ¶ 10, 317 P.3d 464; see also Provo City v. Labor Comm’n,
2015 	UT 	32, 	¶ 	8, 	345 	P.3d 	1242 	(“[A] 	challenge 	to 	an
administrative 	agency’s 	finding 	of 	fact 	is 	reviewed 	for
substantial 	evidence.”). 	“To 	establish 	medical 	causation, 	a
‘claimant must show by evidence, opinion, or otherwise that the
stress, strain, or exertion required by his or her occupation led to
the resulting injury or disability.’” Cook, 2013 UT App 286, ¶ 12
(quoting Allen v. Industrial Comm’n, 729 P.2d 15, 27 (Utah 1986)).
And an employee “can generally recover benefits when an
industrial 	injury 	aggravates 	or 	‘light[s] 	up’ 	a 	pre-existing
condition and has a causal connection with the subsequent onset
of symptoms.” Johnston v. Labor Comm’n, 2013 UT App 179, ¶ 23,
307 P.3d 615 (alteration in original) (quoting Virgin v. Board of
Review, 803 P.2d 1284, 1288 (Utah Ct. App. 1990)).
Fogleman first contends that the Board’s order can be	¶39
construed to grant her an award of future medical care for her
anxiety and depression. She also argues that, at a minimum, the
order’s 	wording 	“is 	ambiguous” 	and 	therefore 	we 	should
remand for further consideration.

Fogleman v. Labor Commission
20141137-CA 	19 	2015 UT App 294
The Board ordered that Fogleman is “entitled to the	¶40
future medical care outlined by the medical panel for her work
injuries.” The Board expressly found, however, that “[w]hile
there is some evidence that [Fogleman] has other limitations
stemming 	from . . . her 	emotional 	state, 	the 	medical 	panel’s
report shows that such conditions are not medically causally
related 	to 	[the 	Work 	Accident].” 	Consequently, 	Fogleman’s
anxiety and depression were not included in the Board’s grant of
future medical care for her “work injuries.” Because the Board
specifically considered and denied Fogleman’s request for an
award of treatment for her anxiety and depression, we disagree
with Fogleman’s characterization of the Board’s order.
Fogleman also appears to argue that the Board erred in	¶41
concluding that the Work Accident did not cause or aggravate
her anxiety and depression. Fogleman seeks support for her
argument in the medical panel’s statement that her anxiety and
depression “compound her current concerns.” There are two
problems with Fogleman’s argument.
First, the Board expressly found that while “[Fogleman’s]	¶42
depression and anxiety hinder her ability to work,” “the medical
panel’s report shows that such conditions are not medically
causally 	related 	to 	[the 	Work 	Accident].” 	To 	successfully
challenge 	the 	Board’s 	factual 	findings, 	Fogleman 	must
“demonstrate 	how 	[the 	record] 	evidence 	is 	inadequate 	to
support the finding[s].” Swift Transp. v. Labor Comm’n, 2014 UT
App 104, ¶ 8, 326 P.3d 678. Fogleman has failed to make this
showing; she simply highlights a single statement in the medical
panel 	report 	that 	arguably 	contradicts 	the 	Board’s 	factual
findings. 	Fogleman 	does 	not 	include 	any 	reference 	to 	the
medical panel’s determination that “medical problems caused by
the industrial accident [had] stabilized” or its statement that she
“had received the appropriate treatment for [her] problems.”
Nor 	does 	she 	reference 	the 	panel’s 	statement, 	“It 	was 	not
expected that her problems would significantly change with
further intervention.” Because Fogleman has not rebutted the

Fogleman v. Labor Commission
20141137-CA 	20 	2015 UT App 294
evidence 	supporting 	the 	Board’s 	ruling, 	she 	has 	failed 	to
demonstrate how that evidence is inadequate to support the
Board’s ruling.
Second, even if Fogleman could shoulder her burden on	¶43
appeal with a single comment from the medical panel report, the
statement upon which she relies does not support her argument.
As 	discussed 	above, 	an 	employee 	may 	recover 	costs 	for
treatment of a pre-existing condition if the employee presents
evidence that an industrial accident has aggravated or lit up a
pre-existing condition and that there is a causal connection
between the subsequent symptoms and the Work Accident. See
Johnston v. Labor Comm’n, 2013 UT App 179, ¶ 23, 307 P.3d 615.
But 	Fogleman 	has 	failed 	to 	make 	this 	showing. 	The 	only
evidence Fogleman raises to support her claim—the medical
panel’s statement regarding her anxiety and depression—seems
to reverse that causation. The panel stated that the anxiety and
depression “compound” her other concerns, not that the Work
Accident caused a flare up in her anxiety and depression.
Accordingly, we reject Fogleman’s contention that the	¶44
Board’s grant of costs for future medical care can be construed to
include an award of costs related to the treatment of her anxiety
and depression. Because the Board’s order is not ambiguous
regarding an award of future care for Fogleman’s anxiety and
depression, 	we 	reject 	her 	request 	to 	remand 	for 	further
clarification. We also reject Fogleman’s argument that the Board
erred by failing to award those costs.
CONCLUSION
We 	conclude 	that 	the 	Board 	did 	not 	err in 	denying	¶45
Fogleman’s petition for permanent total disability compensation
under Utah Code section 34A-2-413(1)(b). The Board did not err
in 	restricting 	its 	significant-impairment 	analysis, 	under
subsection 413(1)(b)(i), to those of Fogleman’s impairments that

Fogleman v. Labor Commission
20141137-CA 	21 	2015 UT App 294
were found to be causally related to the Work Accident. The
Board’s 	conclusion 	that 	Fogleman’s 	impairments 	did 	not
constitute a significant impairment is supported by substantial
evidence. We reject Fogleman’s argument that the Board erred
by 	failing 	to 	“liberally 	construe[] 	[her 	claim] 	in 	favor 	of
awarding benefits.” The plain language of the statute requires
Fogleman to prove the elements of her claim by a preponderance
of the evidence and she has failed to do so. Finally, we conclude
that the Board specifically considered and rejected Fogleman’s
claim that she be granted an award of treatment for her anxiety
and depression, and we conclude that its decision is supported
by substantial evidence.
We decline to disturb the Board’s decision.	¶46