Borja v. Labor Commission

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 123
_________________________________________________________
THE UTAH COURT OF APPEALS
RENE BORJA,
Petitioner,
v.
LABOR COMMISSION AND WAL-MART,
Respondents.
Memorandum Decision
No. 20130157-CA
Filed May 30, 2014
Original Proceeding in this Court
Aaron J. Prisbrey and Trevor C. Sanders, Attorneys
for Petitioner
Jaceson R. Maughan, Attorney for
Respondent Labor Commission
David H. Tolk and Cody G. Kesler, Attorneys for
Respondent Wal-Mart
SENIOR JUDGE PAMELA T. GREENWOOD authored this
Memorandum Decision, in which JUDGES J. FREDERIC VOROS JR.
and MICHELE M. CHRISTIANSEN concurred.1
GREENWOOD, Senior Judge:
¶1 Rene Borja seeks judicial review of an order of the Utah
Labor Commission Appeals Board (the Board) denying him
benefits to pay for lumbar fusion surgery. We decline to disturb the
Board’s decision.

Borja v. Labor Commission
2. The administrative law judge’s decision in this case described
“Waddell’s signs” as follows: “a group of physical signs, first
described in a 1980 article in SPINE, and named for the article’s
principal author, Gordon Waddell. Waddell’s signs may indicate
[a] non-organic component to chronic low back pain.”
20130157-CA 2 2014 UT App 123
¶2 Borja injured his back on March 7, 2010, while employed by
Wal-Mart, when he was pulling a heavy pallet on a pallet jack.
Borja was treated at Intermountain WorkMed the next day for low
back pain that radiated down his back and legs. He was diagnosed
with a lumbar strain and initially treated with physical therapy.
The pain continued, and an MRI scan indicated multiple disc
bulges as well as multilevel spondylosis with degenerative disease,
facet-joint arthropathy, and foraminal and canal narrowing. He
was treated with lumbar epidural steroid injections but reported
worsening pain. Borja consulted with Dr. Michael Major, who
recommended spinal decompression and fusion surgery as
necessary to alleviate his spinal condition.
¶3 Borja was subsequently examined by Wal-Mart’s medical
consultant, Dr. Richard Knoebel, who disagreed with Dr. Major’s
assessment and proposed treatment, opining that Borja had no
permanent impairment from the industrial accident. He further
found that Borja demonstrated significant pain-amplification
behavior and histrionics. He also stated that Borja exhibited
“Waddell signs” that indicated lack of credibility. Dr. Knoebel2
stated that lumbar decompression and fusion surgery was “not
reasonable or indicated” as there was “[n]o objective evidence of
pseudoclaudication or lumbar radiculopathy” and there was
“significant pain amplification behavior.”
¶4 The parties stipulated to referral to a medical panel. The
medical panel examined Borja and reviewed his medical history.
The panel reported that Borja appeared to exaggerate his pain
“with non-physiological findings, factitious weakness and
excessive pain behaviors during its examination.” The panel also

Borja v. Labor Commission
20130157-CA 3 2014 UT App 123
reported Waddell signs. Borja’s pain was medically caused by the
accident, according to the panel, with permanent aggravation of
previously asymptomatic degeneration of Borja’s lumbar spine.
However, the panel concluded, “there are no objective signs to
justify surgery. If done, it would be for the presence of pain only,
which . . . is grossly exaggerated.” The report also stated that “[t]he
presence of non-organic, non-physiologic signs on the examination,
particularly to this degree[,] predict a poor surgical outcome.”
Therefore, the panel opined that surgery was not warranted and
that further steroid injections were not appropriate because they
had not previously been effective. The panel instead recommended
non-narcotic pain medication, exercise, and increased physical
activity.
¶5 Borja objected to the medical panel report and requested an
objection hearing, arguing that the medical panel should not have
utilized Waddell signs to determine there was non-organic pain
and lack of credibility because Waddell signs are not based on
reliable data. The administrative law judge (ALJ) assigned to the
case declined to hold a hearing. She determined that Borja suffered
a compensable work-related injury but that the evidence did not
demonstrate that surgery was necessary. She also found that
treatment up to that time had been necessary and that continued
treatment should consist of non-narcotic medication with medical
support. In regard to the use of Waddell signs, the ALJ stated that
Borja’s argument went “to the weight of the evidence to be
considered with all . . . evidence in the matter and [found] no basis
to set a hearing or exclude the [medical panel] report,” and that
“Waddell signs are typically part of an in person patient
evaluation.”
¶6 Subsequently, Borja filed a Motion for Review with the
Board, again challenging the use of Waddell signs in evaluating his
claim and contending there should be a hearing on the medical

Borja v. Labor Commission
3. Borja’s objection and request for hearing submitted to the ALJ
referred to one study critical of the use of Waddell signs, but did
not include a copy of the study. His Motion for Review filed with
the Board attached copies of two studies.
20130157-CA 4 2014 UT App 123
panel’s report. The Board affirmed the ALJ’s decision. The Board3
found that “the medical panel relied on several factors other than
Waddell signs in assessing Mr. Borja’s symptoms and the necessity
of future medical care.” It noted in particular the medical panel’s
finding that Borja “did not respond to steroid injections and that
his pain complaints were exaggerated with non-physiological
findings, factitious weakness and excessive pain behaviors.”
Further, there was a lack of evidence of a physical injury requiring
surgery. The Board concluded that “regardless of Mr. Borja’s
Waddell signs, it is clear the medical panel did not find his
presentation to be credible or that he required future medical care
for his injury beyond non-narcotic pain medication.”
¶7 Regarding the ALJ’s refusal to hold a hearing on Borja’s
objection to the medical panel report, the Board determined that
Borja did not present new information that “would have altered the
panel’s analysis.” The study presented by Borja was “not new
information; more importantly, there is no indication [that] such
discussion would have altered the panel’s analysis as the panel
relied on several other factors apart from Waddell signs in reaching
its conclusions.” Therefore, the Board concluded that the ALJ
appropriately declined to hold a hearing.
¶8 This petition for judicial review followed. Borja claims it was
an abuse of discretion not to hold a hearing on his objection to the
medical report pursuant to section 34A-2-601(2)(f)(i) of the Utah
Code. Borja further argues that this error was compounded by
allowing the medical panel report to be received into evidence with
an inadequate foundation.

Borja v. Labor Commission
4. An additional avenue for presenting new and conflicting
evidence to a medical panel is contained in rule 602-2-2(B)(4) of the
Utah Administrative Code. Under this rule, “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.”
Utah Admin. Code R602-2-2(B)(4). There is no indication Borja
utilized this provision.
20130157-CA 5 2014 UT App 123
¶9 Procedures regarding objections to a medical panel report
are contained in Utah Code subsections 34A-2-601(2)(d)(ii) and (iii).
A party may file a written objection “[w]ithin 20 days after the
[medical] report” is mailed to the parties. Utah Code Ann. § 34A-2-
601(2)(d)(ii) (LexisNexis Supp. 2013). If such an objection is timely
filed, “the administrative law judge may set the case for hearing to
determine the facts and issues involved.” Id. § 34A-2-601(2)(f)(i)
(emphasis added). Thus, the statute grants the ALJ discretion in4
deciding whether to hold a hearing on an objection to a medical
panel report. See Johnston v. Labor Comm’n, 2013 UT App 179, ¶ 12,
307 P.3d 615. Consequently, we review the ALJ’s denial of a
hearing in this case under an abuse of discretion standard,
providing relief “only if a reasonable basis for that decision is not
apparent from the record.” Id. ¶¶ 15–16; see also Murray v. Labor
Comm’n, 2013 UT 38, ¶ 32, 308 P.3d 461 (noting that an appellate
court reviews an agency’s discretionary decision for “abuse of
discretion to ensure that it falls within the bounds of
reasonableness and rationality” (internal quotation marks
omitted)).
¶10 Borja argues that the ALJ abused her discretion by denying
a hearing because he had proffered new information consisting of
references to scholarly studies undermining the reliability of
Waddell signs. In addition, he claims that the medical panel’s
consideration of non-medical indications such as behavior was
beyond its field of expertise and unfairly tainted the panel’s
assessment of his medical condition. He further argues that

Borja v. Labor Commission
20130157-CA 6 2014 UT App 123
because of these deficiencies there was not an adequate foundation
for admission of the medical panel report.
¶11 The Johnston v. Labor Commission decision informs our
analysis in this case. In Johnston, the employee argued, among other
things, that the medical panel had “misunderstood and improperly
applied” a rule regarding aggravation of a medical condition. 2013
UT App 179, ¶¶ 17, 24. On appeal, this court determined that the
argument was without merit because the Board, not the medical
panel, is the finder of fact, obligated “to view all the evidence
submitted as a whole and then make an appropriate
determination.” Id. ¶ 24. After “reviewing the record as a whole,”
this court held that there was no abuse of discretion in denying a
hearing on an objection that was based, in part, on this issue. Id.
¶ 25.
¶12 Similarly, in this case, the Board had before it, in addition to
the ALJ’s Findings of Fact, Conclusions of Law, and Order, the
medical panel report and Borja’s arguments that the medical panel
“misapplied the criteria for Waddell signs, making its conclusions
regarding Mr. Borja’s credibility unreliable.” The Board determined
that the medical evidence established that surgery was not
warranted for Borja, with or without reference to Waddell signs or
other credibility considerations. The studies assailing the use of
Waddell signs did nothing to undermine the fundamental medical
evidence of Borja’s condition. Therefore, the decision to deny a
hearing on that sole issue was not unreasonable or irrational
because the studies Borja referred to would not “have altered the
medical panel’s analysis.” Certified Bldg. Maint. v. Labor Comm’n,
2012 UT App 240, ¶ 16, 285 P.3d 831.
¶13 Furthermore, “where the [ALJ] has properly denied a
hearing, the appropriate ruling on the objection should be obvious
enough that no additional testimony or evidence is warranted.”
Johnston, 2013 UT App 179, ¶ 30. Thus, no supporting foundational
testimony is necessary to allow consideration of the medical panel’s
report. See id.

Borja v. Labor Commission
5. Due to our decision above, we find it unnecessary to consider the
Board’s contention that Borja’s arguments and the studies he
referred to were not “conflicting medical testimony” necessary to
qualify for a hearing on an objection to a medical panel report.
20130157-CA 7 2014 UT App 123
¶14 For the above reasons, we decline to disturb the Board’s
decision.5