Wallace v. Labor Commission

2019 UT App 121
THE UTAH COURT OF APPEALS
GENA L. WALLACE,
Petitioner,
v.
LABOR C OMMISSION , A MANGIRI R ESORT, AND
WORKERS’ C OMPENSATION F UND,
Respondents.
Opinion
No. 20180677-CA
Filed July 11, 2019
Original Proceeding in this Court
Virginius Dabney and Stony Olsen, Attorneys
for Petitioner
Floyd W. Holm, Attorney for Respondents Amangiri
Resort, and Workers’ Compensation Fund
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES R YAN M. HARRIS and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 	Gena L. Wallace seeks judicial review of the Utah Labor
Commission’s 	(Commission) 	order 	dismissing 	her 	claim 	for
permanent 	total 	disability. 	We 	decline 	to 	disturb 	the
Commission’s decision.
¶2 	In October 2011, Wallace, employed at Amangiri Resort in
southern Utah, fell while descending some stairs as she was
leaving the lobby to retrieve an item from a guest’s car. She
received medical care for her injuries. Subsequently, Wallace
made a workers’ compensation claim and asserted that the
accident resulted in a permanent disability, preventing her from
finding work. Respondents Amangiri Resort, the Commission,

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and Workers’ Compensation Fund (collectively, WCF) denied
that Wallace was permanently and totally disabled.
¶3 	After 	an 	evidentiary 	hearing 	in 	January 	2015, 	the
administrative law judge (ALJ) referred Wallace’s case to a
medical panel, which issued a report in July 2016 (First MPR).
The First MPR contained the following opinions: (1) Wallace
can sit for “40–45 minute intervals over an 8 hour workday
with 	5 	minute 	breaks 	standing 	or 	reclining 	between
each interval”; (2) while Wallace’s use of oxycodone does not
prevent her from driving to and from work, she should not be
assigned driving assignments as part of her work schedule; (3)
Wallace is “able to focus and concentrate to receive instructions,
remember those instructions and carry them out on a continual
basis 	over 	an 	8 	hour 	workday”; 	(4) 	Wallace 	can 	perform
workplace tasks involving bending, stooping, lifting objects,
twisting, 	turning, 	sitting, 	walking, 	reaching, 	pushing, 	and
pulling; (5) Wallace can manage her “low back pain in a light
work 	setting” 	and 	“is 	able 	to 	work 	a 	light 	duty 	work
assignment”; (6) Wallace “has the motor function to use her
hands, arms, legs and feet in a coordinated pattern in the
workplace”; and (7) “[l]ack of leg pain and radiculopathy [1] allow
[Wallace] to pursue light work activities and activities of daily
living.”
¶4 	In 	August 	2016, 	Wallace 	filed 	an 	objection 	to 	the
First MPR. Wallace’s objection included a letter from a physician
(Medical 	Opinion) 	and 	a 	letter 	from 	a 	vocational 	expert
(Vocational Opinion), both written in response to the First MPR.
In November 2017, the medical panel issued a second report
1. “Radiculopathy” refers to “[a]ny disease of a nerve root.”
Radiculopathy, Taber’s Cyclopedic Medical Dictionary 1963 (21st
ed. 2009).

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20180677-CA 	3 	2019 UT App 121
(Second MPR), substantially the same as the First MPR.2 Wallace
also filed an objection to the Second MPR.
¶5 	In 	the 	Findings 	of 	Fact, 	Conclusions 	of 	Law, 	and
Order denying compensation (ALJ Decision), the ALJ excluded
from evidence the Vocational Opinion because it was not timely
and did “not go to the medical panel objection but appear[ed] to
be a back door attempt to place new evidence into the record
which 	denies 	[WCF’s] 	right 	of 	due 	process 	to 	counter 	the
evidence.” The ALJ also excluded the Medical Opinion because
it 	was 	not 	timely 	and 	offered 	“duplicative 	and 	irrelevant”
evidence.
¶6 	Wallace 	sought 	review 	by 	the 	Commission. 	In 	its
order 	affirming 	the 	ALJ 	Decision, 	the 	Commission 	agreed
with 	the 	ALJ’s 	exclusion 	of 	the 	Vocational 	Opinion 	and
the Medical Opinion from evidence. Citing rule R602-2-1(H)(5)
of the Utah Administrative Code, the Commission explained
that “[l]ate-filed medical records may or may not be admitted at
the discretion of the ALJ by stipulation or for good cause
shown.” The Commission further explained that Wallace had
“not offered good cause for such evidence to be admitted.”
Specifically, the Commission stated, “[The Medical Opinion] is
duplicative 	of 	[the 	physician’s] 	other 	treatment 	notes 	and
opinions 	already 	in 	the 	record.” 	Regarding 	the 	Vocational
Opinion, the Commission stated, “There is nothing in the record
to suggest that [Wallace] could not have obtained and submitted
[the Vocational Opinion] prior to the close of the evidentiary
period, which occurred at the conclusion of the hearing on
[Wallace’s] claim.” Wallace now seeks judicial review of the
Commission’s decision.
2. In our review, the two reports appear to be identical apart
from the date of issue and formatting.

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ISSUES AND STANDARDS OF REVIEW
¶7 	The first issue is whether the Commission violated its
own 	rules 	when 	it 	declined 	to 	consider 	medical 	evidence
submitted 	after 	a 	hearing. 	The 	standard 	of 	review 	for 	an
agency’s application and interpretation of its own rules is abuse
of discretion. Brown & Root Indus. Service v. Industrial Comm’n of
Utah, 947 P.2d 671, 	677 (Utah 1997) (“When reviewing the
Commission’s application of its own rules, this court will not
disturb the agency’s interpretation or application of one of the
agency’s rules unless its determination exceeds the bounds of
reasonableness and rationality.”). “Thus, we will overturn the
agency’s interpretation only if that interpretation is an abuse of
discretion.” Id.
¶8 	The second issue is whether the Commission’s conclusion
that Wallace was not limited in her ability to perform the
essential functions of her prior work was supported by the
evidence. “This is an issue of fact reviewed under a substantial
evidence standard. Under this standard, we must uphold the
Commission’s factual findings if such findings are supported by
substantial 	evidence 	based 	upon 	the 	record 	as 	a 	whole.”
Washington County School Dist. v. Labor Comm’n, 2015 UT 78, ¶ 18,
358 P.3d 1091 (cleaned up).
ANALYSIS
I. Discretion to Admit or Exclude New Evidence
¶9 	Wallace 	argues 	that 	the 	Commission 	erred 	when 	it
excluded the Medical Opinion and the Vocational Opinion from
consideration. The Utah Administrative Code grants the ALJ
discretion as to whether to admit new evidence. Rule R602-2-
1(I)(8) 	states 	that 	the 	evidentiary 	record 	is 	“closed 	at 	the
conclusion of the hearing, and no additional evidence will be

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accepted without leave of the administrative law judge.” And
rule R602-2-2(B)(4) states,
A hearing on objections to the [medical] panel
report may be scheduled if there is a proffer of
conflicting medical testimony showing a need to
clarify the medical panel report. Where there is a
proffer 	of 	new 	written 	conflicting 	medical
evidence, the Administrative Law Judge may, in
lieu of a hearing, re-submit the new evidence to the
panel for consideration and clarification.
Finally, rule R602-2-1(H)(5) clarifies, “Late-filed medical records
may 	or 	may 	not 	be 	admitted 	at 	the 	discretion 	of 	the
administrative 	law 	judge 	by 	stipulation 	or 	for 	good 	cause
shown.”
¶10 	The 	plain 	language 	of 	these 	rules 	grants 	the 	ALJ
discretion to exclude or admit the Medical Opinion and the
Vocational Opinion. After the close of the hearing, no new
evidence will be accepted “without leave” of the ALJ. Utah
Admin. Code R602-2-1(I)(8). Thus, while the rules clearly allow
the submission of “[l]ate-filed medical records,” such submission
is “at the discretion” of the ALJ and “by stipulation or for good
cause shown.” Id. R602-2-1(H)(5). Then, if the new evidence is
admitted, the ALJ “may” schedule a hearing on the objections or
“may 	. 	. 	. 	re-submit 	the 	new 	evidence 	to 	the 	panel 	for
consideration and clarification.” Id. R602-2-2(B)(4). We conclude
that it was reasonable and rational 	for the Commission 	to
interpret and apply the rules as affording discretion to the ALJ in
determining whether to admit or exclude the Medical Opinion
and the Vocational Opinion. See Brown & Root Indus. Service v.
Industrial Comm’n of Utah, 947 P.2d 671, 677 (Utah 1997). Thus,
the 	only 	question 	left 	for 	us 	to 	address 	is 	whether 	the
Commission abused its discretion in excluding the evidence in
question.

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¶11 	Regarding 	the 	Medical 	Opinion, 	the 	rules 	allow
submission 	of 	“conflicting 	medical 	testimony” 	only 	if 	the
evidence offered is “new.” Utah Admin. Code R602-2-2(B)(4).
But nothing in the Medical Opinion is new. Wallace had already
submitted more than 240 pages of medical records from her
physician. 	The 	Medical 	Opinion 	that 	Wallace 	attempted 	to
submit 	consists 	of 	a 	one-page 	summary 	of 	the 	previously
submitted medical records but does not claim to add any new
information. Rather than offering new evidence, the Medical
Opinion largely consists of a response by Wallace’s physician
expressing his disagreement with the vocational conclusions of
the medical panel. Indeed, Wallace admits that the Medical
Opinion 	“considered” 	the 	First 	MPR’s 	“implications 	for
[Wallace’s] ability to work.” Wallace also claims that the Medical
Opinion “pointed out some of the evidence that the [medical
panel] had not considered.” From these observations, Wallace
argues that the Medical Opinion is “new medical evidence
considering the [First MPR].” We are not persuaded. Such logic
would 	render 	any 	letter 	challenging 	a 	medical 	panel’s
conclusions 	“new 	written 	conflicting 	medical 	evidence.” 	Id.
R602-2-2(B)(4). Thus, while the Medical Opinion is certainly
responsive to the First MPR, the information it contains is not
properly medical or new, and the Commission did not act
unreasonably in rejecting it as duplicative and cumulative. See
Brady v. Labor Comm’n, 2010 UT App 58U, para. 12 (stating that
although a doctor’s letter disagreeing with a medical panel’s
findings 	“offer[ed] 	a 	different 	interpretation 	of 	the 	medical
evidence[,] . . . [this court could not] say that the ALJ acted
unreasonably in concluding that [its contents] did not rise to the
level of new written conflicting medical evidence” (cleaned
up)).3
3. Indeed, a careful reading of the Medical Opinion Wallace
sought to submit reveals that it contained no discernible new
(continued…)

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20180677-CA 	7 	2019 UT App 121
¶12 	Regarding the Vocational Opinion, the Commission did
not abuse its discretion in excluding it from evidence, because it
was not timely and Wallace offered no good cause for her delay
in 	filing 	it.4 Wallace had 	ample 	opportunity to 	submit 	the
(…continued)
medical evidence. Rather, it appears to echo the Vocational
Opinion in offering only vocational conclusions:
[T]he recommendation that [Wallace] be allowed to
take a break to change positions and rest for 5
minutes every 40 minutes is a clear indicator that
she 	still 	has 	disability 	and 	requires 	special
accommodations in any work environment. In all
practicality, 	these 	accommodations 	are 	not
conducive to a 40-hour work week in a competitive
work environment and will likely discourage any
potential 	employer 	from 	hiring 	her. 	. 	. 	. 	The
accommodations 	required 	by 	[Wallace’s] 	work-
related 	injury 	and 	chronic 	back 	pain 	are 	by
themselves a likely “deal breaker” for any potential
employer. . . . I sincerely feel that [Wallace] is not
employable.
Thus, because it is not properly a medical report, the Medical
Opinion does not qualify as “new written conflicting medical
evidence.” See Utah Admin. Code R602-2-2(B)(4); infra note 4.
4. The Vocational Opinion—because it is a vocational report and
not a medical report—does not fall under rule R602-2-2(B)(4) of
the Utah Administrative Code, which states, “A hearing on
objections to the [medical] panel report may be scheduled if
there is a proffer of conflicting medical testimony showing a
need to clarify the medical panel report.” Similarly, rule R602-2-
1(H)(5) is limited to the submission of untimely filed “medical
records.” While Wallace does not argue it, rule R602-2-1(I)(8)
appears 	to 	give 	an 	ALJ 	discretion 	to 	admit 	non-medical
(continued…)

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Vocational Opinion before the close of the hearing. Wallace was
injured in October 2011. She filed for a hearing in May 2014, and
her hearing was in 	January 2015. Therefore, she had eight
months from the time she filed for the hearing and over three
years from the time of her accident to obtain a vocational report.
Yet when objecting to the First MPR in July 2016, Wallace was
able to file the Vocational Opinion in less than a month.
¶13 	But in seeking review, Wallace argues that she was unable
to file the Vocational Opinion until the First MPR was issued.
Wallace argues that the Vocational Opinion was based “on the
First [MPR] and specifically considered the [medical panel’s]
restrictions 	and 	conclusions 	regarding 	[Wallace’s] 	ability 	to
work. How can [the Vocational Opinion] or any other evidence
that relies on the contents of a [MPR] be submitted prior to the
evidentiary hearing, referral to a [medical panel] and after a
[MPR] is issued?” But Wallace’s analysis here is flawed because
she does not consider the fact that all the evidence relied on in
preparing the Vocational Opinion was readily available to the
vocational expert before the close of the hearing. Wallace offers
no 	explanation—apart 	from 	observing 	that 	the 	Vocational
Opinion was responsive to the First MPR—to explain why the
Vocational 	Opinion 	could 	not 	have 	been 	submitted 	at 	the
hearing.5 	Given 	that 	all 	the 	medical 	evidence 	was 	readily
(…continued)
testimony after the close of a hearing. See Utah Admin. Code
R602-2-1(I)(8) 	(stating 	that 	after 	“the 	conclusion 	of 	the
hearing, . . . no additional evidence will be accepted without
leave of the administrative law judge”).
5. We note that the Vocational Opinion mischaracterized both
MPRs, which stated that Wallace is able to sit “for 40–45 minute
intervals over an 8 hour workday with 5 minute breaks standing
or reclining between each interval.” The Vocational Opinion
(continued…)

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available 	well 	before 	the 	hearing, 	Wallace 	should 	have
submitted a vocational report that anticipated the range of work
restrictions that might be imposed. See Quast v. Utah Labor
Comm’n, 	2017 	UT 	40, 	¶ 	26, 	424 	P.3d 	15 	(stating 	that 	“the
employee 	bears 	the 	burden 	of 	proof 	on 	all 	elements 	of 	a
permanent total disability claim”). Further, WCF’s vocational
expert testified at the hearing; likewise, there is no reason
Wallace could not have called her vocational expert to testify.
Thus, because the Vocational Opinion was untimely, we hold
that the Commission did not abuse its discretion in rejecting it.
(…continued)
interpreted this statement as requiring potential employers to
make 	unreasonable 	accommodations 	that 	would 	be
“inconsistent 	with 	sustained 	employment” 	for 	Wallace. 	The
vocational expert wrote, “In my opinion, scheduled off-task time
every 40 to 45 minutes falls in the [unreasonable] category and
would 	not 	be 	accommodated 	in 	a 	competitive 	work
environment.” The Vocational Opinion assumes that standing
for five minutes every 40–45 minutes would require Wallace to
be “off-task,” resulting in an unreasonable accommodation. But
the 	Vocational 	Opinion 	itself 	states 	that 	sedentary 	work
“involves sitting most of the time, but may involve walking or
standing for brief periods of time.” In addressing these five
minute periods, the First MPR states that Wallace required “brief
rest periods” after 40–45 minutes of working. (Emphasis added.)
Contrary to the Vocational Opinion’s characterization, the First
MPR 	does 	not 	say 	these 	rest 	periods 	are 	breaks 	requiring
Wallace to be “off-task.” Thus, under the Vocational Opinion’s
own logic and the recommendations in the First MPR, allowing
Wallace to stand for five minutes every 40–45 minutes would not
necessarily 	require 	her 	to 	be 	“off-task.” 	Rather, 	she 	could
continue to fulfill her work-related duties while standing for
those five minutes without being “off-task.”

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20180677-CA 	10 	2019 UT App 121
II. Sufficiency of the Evidence
¶14 	Wallace contends that the decision of the Commission
was not supported by substantial evidence. Asserting that the
Medical Opinion and the Vocational Opinion represent the only
evidence 	evaluating 	and 	analyzing 	the 	First 	MPR, 	Wallace
argues that the Commission was required to rely only on these
two opinions. But as we have just explained, these two opinions
were properly excluded from evidence. The question remains
whether 	the 	Commission 	based 	its 	findings 	on 	substantial
evidence. “We will affirm so long as the Commission’s findings
are based on substantial evidence, even if another conclusion
from the evidence is permissible.” Brady v. Labor Comm’n, 2010
UT App 58U, para. 7 (cleaned up).
¶15 	The Commission based its conclusions on the opinions of
a medical doctor and a vocational expert presented before and
during the hearing. Wallace claims that this evidence is of
“limited value” because it was offered before the First MPR was
issued. We disagree. Our review requires us to consider the
totality of the record. See Utah Code Ann. § 63G-4-403(4)(g)
(LexisNexis 2016) (“The appellate court shall grant relief only if
. . . the agency action is based upon a determination of fact,
made 	or 	implied 	by 	the 	agency, 	that 	is 	not 	supported 	by
substantial evidence when viewed in light of the whole record
before the court . . . .”); see also Washington County School Dist. v.
Labor Comm’n, 2015 UT 78, ¶ 18, 358 P.3d 1091 (stating that we
“uphold the Commission’s factual findings if such findings are
supported by substantial evidence based upon the record as a
whole” (cleaned up)). And the testimony of the witnesses in the
hearing, as well as the two medical panel reports, provided
substantial evidence upon which the Commission could rely in
reaching its decision. In addition, the medical panel itself relied
on a substantial medical record—over 480 pages submitted to
the 	ALJ 	and 	later 	to 	the 	Commission—in 	reaching 	its
conclusions.

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20180677-CA 	11 	2019 UT App 121
¶16 	“Here, although [Wallace] may have competing medical
theories, 	. 	. 	. 	the 	Commission’s 	conclusions 	were 	certainly
supported by substantial evidence,” see Brady, 2010 UT App 58U,
para. 7, that Wallace could manage her “low back pain in a light
work setting,” “is able to work a light duty work assignment,”
and therefore is not permanently and totally disabled for the
purpose of workers’ compensation benefits.
CONCLUSION
¶17 	The 	Commission 	did 	not 	err 	in 	affirming 	the 	ALJ’s
decision to exclude the Medical Opinion and the Vocational
Opinion. The Medical Opinion did not offer new evidence but
only duplicated evidence that had already been submitted. The
Vocational Opinion was untimely, and Wallace was unable to
show good cause for her delay in submitting it. Furthermore,
substantial evidence supported the Commission’s conclusion
that Wallace was not totally disabled for the purpose of workers’
compensation benefits. Accordingly, we decline to disturb the
Commission’s decision.