Ernest Health v. Labor Commission

2016 UT App 48
THE UTAH COURT OF APPEALS
ERNEST H EALTH , I NC . AND
NORTH R IVER I NSURANCE C OMPANY ,
Petitioners,
v.
LABOR C OMMISSION AND M ARTIE BREIVIK,
Respondents.
Memorandum Decision
No. 20141138-CA
Filed March 10, 2016
Original Proceeding in this Court
Nancy C. Hummel, Attorney for Petitioners
Gary E. Atkin and Marsha S. Atkin, Attorneys for
Respondent Martie Breivik
Jaceson R. Maughan, Attorney for Respondent
Labor Commission
JUDGE S TEPHEN L. R OTH authored this Memorandum Decision, in
which JUDGES M ICHELE M. C HRISTIANSEN and K ATE A. TOOMEY
concurred.
ROTH, Judge:
¶1 	On October 22, 2009, Martie Breivik, who was employed
at the time as a medical secretary at Utah Valley Specialty
Hospital, fell while walking in to work and hit her right hand on
the cement ground, causing her to “hyper extend[] her right
small finger [and] right ring finger.” There is no dispute that her
fall was an industrial accident covered by Utah’s Workers’
Compensation 	Act. 	The 	following 	month, 	an 	MRI 	revealed
ligament damage to her hand but no fractures. In December
2009, 	Breivik 	was 	diagnosed 	with 	complex 	regional 	pain
syndrome, anxiety, and depression, all of which originated from

Ernest Health v. Labor Commission
20141138-CA 	2 	2016 UT App 48
the fall. Breivik continued to work for Utah Valley Specialty
Hospital in a light-duty capacity until October 31, 2011, when
she was terminated “because she did not have a full work
release.” In August 2013, Breivik applied for permanent-total-
disability compensation. See generally Utah Code Ann. § 34A-2-
413 	(LexisNexis 	Supp. 	2015).1 	On 	May 	28, 	2014, 	an
administrative 	law 	judge 	(the 	ALJ) 	made 	a 	preliminary
determination that Breivik was permanently and totally disabled
as a result of her industrial accident. See Utah Admin. Code
R612-200-5(C) (stating that permanent total disability claims
arising under section 34A-2-413 of the Utah Code “require[] a
two-step 	adjudicative 	process”: 	first, 	a 	“preliminary
determination whether the applicant is permanently and totally
disabled” and, second, a determination “whether the applicant
can be reemployed or rehabilitated”); see also Thomas v. Color
Country Mgmt., 2004 UT 12, ¶ 21, 84 P.3d 1201 (“Section 34A–2–
413(6) . . . requires that a finding be issued in two parts—an
initial 	finding 	and 	a 	final 	finding. 	The 	initial 	finding 	of
permanent total disability triggers a review period in which the
employer or its insurance carrier may submit a reemployment
plan.”).2 The Labor Commission (the Commission) upheld the
ALJ’s decision.
1. Because the statutory provisions in effect at the relevant times
do not differ materially from the statutory provisions now in
effect, we cite the current edition of the Utah Code Annotated for
convenience.
2. The Utah Supreme Court has held that
[a]lthough a Commission finding pursuant to Utah
Code 	section 	34A-2-413 	of 	permanent 	total
disability 	is ‘not 	final’ 	under 	that 	statute until
certain second-step proceedings take place, such a
finding 	does 	constitute 	a 	‘final 	agency 	action’
within the meaning of [the Utah Administrative
(continued…)

Ernest Health v. Labor Commission
20141138-CA 	3 	2016 UT App 48
¶2 	Ernest Health, Inc.3 and North River Insurance Company
(collectively, 	Ernest 	Health) 	seek 	judicial 	review 	of 	the
Commission’s 	decision 	affirming 	the 	ALJ’s 	order 	awarding
permanent-total-disability-compensation 	benefits 	to 	Breivik.
Ernest Health argues: first, that the Commission erred by not
remanding 	the 	case 	and 	directing 	the 	ALJ 	to 	reopen 	the
evidentiary 	record 	and 	consider 	newly 	obtained 	video
surveillance 	and 	the 	supplemental 	medical 	report 	that
accompanied 	it; 	second, 	that 	the Commission 	erred 	by 	not
remanding the case and directing the ALJ to make a referral to a
medical panel; and third, that the ALJ’s order provides an
insufficient basis for Ernest Health to develop a re-employment
plan. We do not disturb the Commission’s ruling.
I. Motion to Reopen the Evidentiary Record
¶3 	Ernest Health asserts that “[s]ection 63-46b-8(1)(a) of the
Utah Administrative Procedures Act requires that ALJs obtain
full disclosure of relevant facts” and argues that the Commission
should have granted its motion to reopen the evidentiary record
and 	admit 	additional 	evidence. 	Specifically, 	Ernest 	Health
argues that the Commission erred by not remanding the case to
(…continued)
Procedures Act] for purposes of appellate judicial
review.
Ameritemps, Inc. v. Utah Labor Comm’n, 2007 UT 8, ¶ 13, 152 P.3d
298; see also Ameritemps, Inc. v. Labor Comm’n, 2005 UT App 491,
¶¶ 11–16, 128 P.3d 31 (articulating the difference between a
“final order” for enforcement purposes and a “final agency
action” for purposes of appellate judicial review), aff’d, 2007 UT
8, 152 P.3d 298; id. ¶¶ 17–19, 25 (concluding that the Labor
Commission’s finding of permanent total disability constitutes a
final agency action subject to appellate judicial review).
3. Utah Valley Specialty Hospital is owned by Ernest Health, Inc.

Ernest Health v. Labor Commission
20141138-CA 	4 	2016 UT App 48
the ALJ to consider newly obtained video surveillance of Breivik
in conjunction with the accompanying supplemental medical
report from Ernest Health’s independent medical examiner.
¶4 	Approximately four months after the evidentiary hearing
on Breivik’s permanent disability petition (and approximately
three months after the ALJ’s order), Ernest Health moved the
Commission to reopen the evidentiary record, stating that “[i]n
anticipation of the hearing on the reemployment plan” it had
“conducted surveillance of [Breivik] on various dates [during
July and August of 2014].”4 Ernest Health requested that the
evidentiary record be reopened so it could “present evidence” of
the 	video 	surveillance 	of 	Breivik, 	taken 	months 	after 	the
conclusion of the hearing, along with the supplemental medical
report. According to Ernest Health, because Breivik’s testimony
about her limitations “served as a substantial basis for the ALJ’s
order” and “[t]he video provides direct and concise evidence
that [Breivik] was not truthful in her testimony,” the ALJ’s order
was 	based 	on 	“[a] 	flawed 	foundation.” 	Ernest 	Health 	now
argues that “[w]ithout a review of the relevant and outcome
determinative surveillance video, [it is] substantially prejudiced
[because] the agency action is based upon a determination of fact
that is not supported by substantial evidence when viewed in
light of the whole record[] before the court.”
¶5 	In its order affirming the ALJ’s decision, the Commission
stated,
4. The evidentiary hearing was held on April 30, 2014, and the
ALJ’s findings of fact, conclusions of law, and order were issued
approximately one month later on May 28, 2014. On September
4, 	2014, 	Ernest 	Health 	submitted 	an 	“Amended 	Motion 	to
Review or In the Alternative, Motion to Reopen Evidentiary
Record Based on Newly Obtained Evidence.”

Ernest Health v. Labor Commission
20141138-CA 	5 	2016 UT App 48
As a preliminary matter, the [Commission] rejects
Ernest 	[Health’s] 	attempt 	to 	submit 	additional
evidence, 	including 	surveillance 	video 	of 	Ms.
Breivik, which was not presented before [the ALJ].
The 	[Commission] 	does 	not 	agree 	with 	Ernest
[Health] that the proffered new evidence warrants
re-opening 	of 	the 	evidentiary 	record. 	Ernest
[Health] has not provided sufficient explanation as
to why it waited until after the close of the record
to 	obtain 	the 	proffered 	evidence. 	The
[Commission] 	therefore 	did 	not 	consider 	such
evidence.
Ernest 	Health 	filed 	a 	Motion 	for 	Reconsideration, 	and 	the
Commission again re-affirmed that “the late-submitted evidence
was properly excluded [by the ALJ] . . . and cannot be the basis
for referral to an impartial medical panel.”
¶6 	Rule 602-2-1 of the Utah Administrative Code sets forth
the pleading and discovery procedures for an adjudication of
workers’ 	compensation 	benefits 	before 	the 	Commission. 	See
Utah Admin. Code R602-2-1. It provides that “the evidentiary
record shall be deemed closed at the conclusion of the hearing
and no additional evidence will be accepted without leave of the
[the ALJ hearing the case].” Id. R602-2-1(I)(8). We “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.” Brown & Root Indus. Serv. v.
Industrial Comm’n of Utah, 947 P.2d 671, 677 (Utah 1997) (citation
omitted). 	In 	addition, 	the 	Commission 	is 	afforded 	broad
discretion in determining how best to conduct its inquiry into
each case: “The commission may make its investigation in such
manner as in its judgment is best calculated to ascertain the
substantial rights of the parties and to carry out justly the spirit
of the chapter.” Utah Code Ann. § 34A-2-802(1) (LexisNexis
2011). In particular, “whether further findings are made is a

Ernest Health v. Labor Commission
20141138-CA 	6 	2016 UT App 48
matter of discretion with the Commission.” Jones v. Ogden Auto
Body, 646 P.2d 703, 705 (Utah 1982) (per curiam).
¶7 	We are not persuaded that the Commission’s decision to
exclude Ernest Health’s late-submitted evidence exceeded the
bounds 	of 	the 	Commission’s 	discretion. 	The 	Commission
concluded that Ernest Health had not provided a “sufficient
explanation” of why it could not have obtained similar evidence
prior to the hearing and, indeed, did not demonstrate that it had
even made any attempt to do so. Instead, Ernest Health simply
stated to the Commission that the surveillance on Breivik was
conducted “[i]n anticipation of the hearing on the reemployment
plan,” without further elucidation. And on review Ernest Health
has not provided any more of an explanation than it did to the
Commission for its delay in obtaining the surveillance video,
stating only that it “obtained the video in order to prepare for
the second step proceeding.” Neither the statement made to the
Commission nor the statement made in its briefing make any
attempt to explain why Ernest Health was unable to obtain the
surveillance video during the period prior to the evidentiary
hearing before the ALJ. As a consequence, before this court,
Ernest 	Health 	has 	simply 	reinforced 	the 	Commission’s
conclusion that it “has not provided sufficient explanation as to
why it waited until after the close of the record to obtain the
proffered evidence.”
¶8 	Furthermore, 	the 	Commission’s 	broad 	discretion 	to
“make its investigation in such manner as in its judgment is best
calculated to ascertain the substantial rights of the parties,” Utah
Code 	Ann. 	§ 	34A-2-802(1), 	seems 	to 	encompass 	both 	a
determination whether new evidence is significant enough to
require further factual inquiry into the claimant’s condition and,
as 	particularly 	pertinent 	here, 	whether 	“the 	proffered
evidence . . . was unreasonably late . . . to warrant reopening the
evidentiary proceedings,” Timpanogos Hosp. v. Labor Comm’n,
2011 UT App 106, ¶ 5, 251 P.3d 855 (internal quotation marks

Ernest Health v. Labor Commission
20141138-CA 	7 	2016 UT App 48
omitted); see also Carradine v. Labor Comm’n, 2011 UT App 212,
¶ 2, 258 P.3d 636 (concluding that the Commission did not abuse
its discretion by refusing to reopen a hearing based on an
“untimely proffer of evidence”); Timpanogos Hosp., 2011 UT App
106, ¶ 5 (“We are not convinced that the Commission abused its
discretion when it determined that the proffered evidence . . .
was unreasonably late . . . to warrant reopening the evidentiary
proceedings.” (internal quotation marks omitted)).5
¶9 	Here, Ernest Health has failed to persuade us that the
Commission abused its discretion by finding the surveillance
video and accompanying supplemental medical report to be
untimely. 	Instead, 	Ernest 	Health 	merely 	argues 	that 	the
5. With regard to the substance of the video, Ernest Health seems
to be contending that Breivik’s condition was not as grave as she
claimed 	at 	the 	hearing. 	Ernest 	Health 	alleges 	that 	the
surveillance video shows that Breivik “can clearly use her right
hand, use her left hand, drive, walk without a cane, drive with
children in the car, throw a rock with her right hand, [and] hold
cups in her right hand.” Breivik, however, argues that the video
is equivocal at best. She points out, for example, that at the
hearing before the ALJ, she testified that she can drive, shop at
the grocery store, and complete laundry, but only “one shirt at a
time.” Breivik also points out that the record shows that her
disabilities affect her less during the warmer months and that
the video was taken in the summer. Given the foregoing, Breivik
denies that the content of the video actually calls her impairment
into question because “[h]er problem with engaging in gainful
employment . . . was not an inability to do anything at all but,
rather, the inability to engage in the necessary actions on a
regular and consistent enough basis to be able to maintain
gainful employment.” (Emphasis added.) Because we affirm the
Commission’s decision on other grounds, we do not reach the
merits of the dispute over the interpretation of the video.

Ernest Health v. Labor Commission
20141138-CA 	8 	2016 UT App 48
proffered new evidence itself justifies reopening the evidentiary
record. 	But 	this 	is 	insufficient 	to 	demonstrate 	that 	the
Commission abused its discretion when it determined to “not
consider such evidence.”
II. Referral to a Medical Panel
¶10 	Ernest Health next argues that the Commission erred by
not remanding the case to the ALJ for referral to a medical panel,
because 	“the 	medical 	records 	show 	a 	conflict 	of 	opinion”
between Breivik’s treating physician, Dr. Chung, and Ernest
Health’s 	independent 	medical 	examiner, 	Dr. 	Colledge. 	The
decision to refer medical aspects of a disability compensation
case to a medical panel is generally a matter of discretion. See
Utah Code Ann. § 	34A-2-601(1)(a) (LexisNexis Supp. 2015).
“[R]eferral to a medical panel is mandatory only where there is a
medical controversy as evidenced through conflicting medical
reports.” Brown & Root Indus. Serv. v. Industrial Comm’n of Utah,
947 P.2d 671, 677 (Utah 1997) (citation omitted); see also Utah
Admin. Code R602-2-2(A) (“A panel will be utilized by the [ALJ]
where one or more significant medical issues may be involved.
Generally 	a 	significant 	medical 	issue 	must 	be 	shown 	by
conflicting medical reports.”). “Whether there are conflicting
medical reports is a question of fact.” Brown & Root, 947 P.2d at
677. “We must uphold the Commission’s factual findings if such
findings are supported by substantial evidence based upon the
record as a whole.” Id. “An administrative law decision meets
the substantial evidence test when a reasonable mind might
accept 	as 	adequate 	the 	evidence 	supporting 	the 	decision.”
Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-
day Saints, 2007 UT 42, ¶ 35, 164 P.3d 384 (citation and internal
quotation marks omitted); see also Hurley v. Board of Review of the
Indus. Comm'n, 767 P.2d 524, 526–27 (Utah 1988) (“An agency’s
findings of fact, however, are accorded substantial deference and
will not be overturned if based on substantial evidence, even if
another conclusion from the evidence is permissible.”).

Ernest Health v. Labor Commission
20141138-CA 	9 	2016 UT App 48
¶11 	Here, 	the 	Commission 	considered 	Ernest 	Health’s
argument that “the medical aspects of Ms. Breivik’s claim must
be 	referred 	to 	an 	impartial 	medical 	panel 	according 	to
Commission rules” because “there are significant medical issues
regarding . . . Ms. Breivik’s claim for permanent total disability
compensation.” 	In 	its 	ruling 	affirming 	the 	ALJ’s order, 	the
Commission adopted the ALJ’s extensive findings of fact. Those
factual findings included a summary of the medical evidence
related to the industrial accident and a detailed discussion of the
medical problems the ALJ determined were a result of Breivik’s
October 2009 fall. The Commission found that “the opinions of
Dr. Chung and Dr. Colledge do not necessarily conflict with each
other” and concluded that “referral to a medical panel is [not]
required.” Based on the ALJ’s fact findings, the Commission
went on to explain,
Dr. Chung concluded as of June 2013 that Ms.
Breivik 	was 	not 	employable 	due 	to 	her 	pain
condition and unstable emotional state. While Dr.
Colledge at one point found that Ms. Breivik could
work in a sedentary position if motivated, he later
changed 	his 	assessment 	and 	described 	that 	he
would not anticipate Ms. Breivik being able to
work 	with 	her 	dominant 	right 	hand. 	When
comparing such opinions from Dr. Chung and Dr.
Colledge, the [Commission] concludes that referral
to a medical panel is not required under rule R602-
2-2(A).
On 	review, 	Ernest 	Health 	has 	not 	engaged 	with 	the
Commission’s reasoning and has therefore failed to carry its
burden to demonstrate that the Commission’s decision was not
based upon substantial evidence. Likewise, Ernest Health has
not persuaded us that it was unreasonable for the Commission
to determine that there was no actual conflict between Dr.
Chung’s opinion and Dr. Colledge’s opinion. Instead, it merely

Ernest Health v. Labor Commission
20141138-CA 	10 	2016 UT App 48
re-argues the evidence in favor of its position that Breivik is
employable with accommodations and leaves it to us to consider
whether the Commission’s contrary conclusion is the result of
medical reports that actually conflict. Cf. Timpanogos Hosp., 2011
UT App 106, ¶¶ 3–4 (recognizing that although the reports
submitted 	by 	various 	doctors 	may 	have 	been 	“somewhat
incomplete,” 	“limited,” 	demonstrated 	“varying 	degrees 	of
conviction,” 	or 	failed 	to 	“challeng[e] 	the 	existence 	of 	the
condition head on,” the Commission did not abuse its discretion
because there was “no actual conflict”).
¶12 	In fact, Ernest Health’s entire argument that there is a
conflict between the medical opinions is as follows:
In 	the 	present 	case, 	Dr. 	Chung 	initially
indicated on January 5, 2012, that [Breivik] was
capable of working [as] long as she was not forced
to use her right hand constantly and as long as she
was allowed to frequently [rest] her right hand. On
March 	15, 	2012, 	Dr. 	Chung 	indicated 	that 	if
[Breivik] 	could 	find 	an 	employer 	that 	would
accommodate her need to avoid constant repetitive
use of her right hand that she would be able to
work but that . . . she would have problems finding
an 	employer 	that 	would 	be 	willing 	to
accommodate her. On June 13, 2013, Dr. Chung
indicated that [Breivik] could work if she could
find an employer that would accommodate her
need to avoid constant repetitive use of her right
hand.
Dr. 	Colledge 	examined 	[Breivik] 	on
February 5, 2014 with contradictory findings. Dr.
Colledge found [Breivik’s] effort inconsistent and
questionable 	and 	contacted 	Dr. 	Chung. 	Dr.
Colledge indicated that [Breivik] has very minimal
pathology 	along 	with 	her 	significant 	subjective

Ernest Health v. Labor Commission
20141138-CA 	11 	2016 UT App 48
symptom 	complaints 	and 	that 	if 	she 	were 	so
motivated 	she 	could 	perform 	at 	a 	sedentary
capacity. Dr. Colledge issued an addendum and
indicated again that [Breivik’s] complaints were
very disproportionate to her initial cause of injury.
Dr. Colledge indicated that many individuals with
right hand/upper extremity amputations perform
at high levels in spite of their loss. He indicated the
difference between disability and impairment is
motivation.
In this case, the medical records show a
conflict of opinion between Dr. Chung and Dr.
Colledge 	regarding 	[Breivik’s] 	impairment 	and
functional and mental capacity. This discrepancy is
further borne out by the addendum report of Dr.
Colledge dated August 24, 2014.[6]
¶13 	In this argument, Ernest Health relies on three reports
from Dr. Chung to assert that Breivik is employable: first, a
January 5, 2012 report that states that “[Breivik] is capable of
working as long as she is not forced to use her right hand
constantly and is allowed to frequently rest her right hand”;
second, a report from March 15, 2012, that states that “if [Breivik]
can find an employer that would accommodate her need to
6. Dr. Colledge’s August 24, 2014 supplemental report was based
on Ernest Health’s post-hearing video surveillance of Breivik.
Because we have declined to disturb the Commission’s denial of
Ernest Health’s motion to reopen the evidentiary record to
receive the video and the supplemental report, we decline to
consider Dr. Colledge’s supplemental report in our analysis of
whether there was a conflict of opinion between Dr. Chung and
Dr. Colledge that required the Commission to refer the matter to
a medical panel.

Ernest Health v. Labor Commission
20141138-CA 	12 	2016 UT App 48
avoid constant repetitive use of her right hand that she would be
able to work”; and finally a report from June 13, 2013, which
Ernest Health characterizes as stating that “[Breivik] could work if
she could find an employer that would accommodate her need
to avoid constant repetitive use of her right hand.”7 (Emphases
added.) And with regard to Dr. Colledge, Ernest Health asserts
that his assessment of Breivik “indicate[s] that [Breivik] has very
minimal 	pathology 	along 	with 	her 	significant 	subjective
symptom complaints” and that “if she were . . . motivated” she
would be employable “at a sedentary capacity.” Ernest Health
seems to argue that Dr. Colledge also considered Breivik’s ability
to work with only one hand when it referenced Dr. Colledge’s
statement 	that 	“many 	individuals 	with 	right 	hand/upper
extremity amputations perform at high levels in spite of their
loss.”
¶14 	But based on the argument Ernest Health has presented
on 	judicial 	review, 	the 	significance 	of 	any 	conflict 	that 	it
perceives 	between 	Dr. 	Chung’s 	opinion 	and 	Dr. 	Colledge’s
opinion 	is obscure 	at 	best. 	In 	fact, 	although 	Ernest 	Health
emphasizes an apparent disagreement between the two doctors
7. The June 13, 2013 report states the opposite. In that report Dr.
Chung ultimately opines,
I again discussed with [Breivik] that I no longer
believe she is employable. Her pain has gotten to
the 	point 	where 	she 	can’t 	concentrate. 	Her
emotions due 	to 	her 	chronic pain 	have 	gotten
extremely labile. I am completely supportive of her
decision to apply for long term disability. I don’t
want her applying for more jobs and going to
interviews only to fail getting the jobs. At this point
I believe those interviews which have only been
leading to failure for the past four years [are]
counterproductive.

Ernest Health v. Labor Commission
20141138-CA 	13 	2016 UT App 48
regarding whether Breivik’s symptoms are entirely consistent
with her injury, Ernest Health’s characterization of the opinions
of both Dr. Chung and Dr. Colledge appears to a significant
degree to find them in agreement: with accommodations, Breivik
is employable. And while Dr. Chung ultimately opined that
Breivik 	had 	become 	unemployable 	and 	the 	Commission
recognized this in its decision to uphold the award of permanent
total disability, Ernest Health’s cryptic analysis does not include
that information or analyze how any divergence in the medical
views of the two doctors actually contradicts the Commission’s
finding that “the opinions of Dr. Chung and Dr. Colledge do not
necessarily conflict with each other.”
¶15 	Further, 	our 	own 	review 	of 	Dr. 	Chung’s 	and 	Dr.
Colledge’s 	medical 	reports 	corroborates 	the 	Commission’s
factual determination that there was no significant conflict of
medical opinion between the reports. If an agency’s findings of
fact are supported by substantial evidence, we will decline to
disturb those findings “even if another conclusion from the
evidence is permissible.” Hurley v. Board of Review of the Indus.
Comm’n, 767 P.2d 524, 526–27 (Utah 1988). Ernest Health has not
satisfied the burden of showing that there is no substantial
evidence to support the Commission’s decision that the medical
reports were not in conflict. Therefore it has not persuaded us
that the Commission erred in deciding not to refer the matter to
a medical panel.8
8. While it is true that Ernest Health described some conflicts
between the reports of Dr. Chung and Dr. Colledge in the
statement of facts section of its brief, including differing opinions
on 	whether 	Breivik 	is employable, 	Ernest 	Health 	has done
nothing in the argument section of its brief to demonstrate how
the facts it describes in its statement of facts undermine the
Commission’s 	finding 	that 	the 	medical 	opinions 	“do 	not
necessarily 	conflict 	with 	each 	other” 	such 	that 	there 	is 	no
(continued…)

Ernest Health v. Labor Commission
20141138-CA 	14 	2016 UT App 48
III. Re-employment Plan
¶16 	Finally, 	Ernest 	Health 	argues 	that 	the 	ALJ’s 	order
“requir[ing] [Ernest Health] to submit a re-employment plan” is
insufficient because the ALJ’s order failed to “specify [Breivik’s]
work abilities” or “identify specific restrictions” and that as a
result, Ernest Health was impeded in its “ability to submit an
appropriate re-employment plan.” Ernest Health contends that
“[w]ithout 	specific 	work 	restrictions, 	[it 	is] 	substantially
prejudiced as the ALJ failed to resolve one of the key issues
requiring resolution.” Ernest Health claims that “[t]he ALJ’s
conclusions are inadequate for [its] vocational expert to prepare
a reemployment plan that will allow [Breivik] to return to
gainful employment.”
¶17 	“Our rules clearly state that a petitioner’s brief must
‘contain the contentions and reasons of the [petitioner] with
respect 	to 	the 	issues 	presented . . . with 	citations 	to 	the
authorities, statutes, and parts of the record relied on.’” A & B
Mech. Contractors v. Labor Comm’n, 2013 UT App 230, ¶ 21, 311
P.3d 528 (alteration and omission in original) (quoting Utah R.
App. P. 24(a)(9)). “To satisfy rule 24(a)(9), the argument ‘must
provide meaningful legal analysis.’” Wilson v. IHC Hosps., Inc.,
2012 UT 43, ¶ 121, 289 P.3d 369 (quoting West Jordan City v.
(…continued)
substantial evidence to support it. Simply put, Ernest Health
does not support its argument with specific facts, and we decline
to take up that task for it here. See State v. Thomas, 961 P.2d 299,
305 (Utah 1998) (“Implicitly, rule 24(a)(9) [of the Utah Rules of
Appellate Procedure] requires not just bald citation to authority
but development of that authority and reasoned analysis based on
that authority.” (emphasis added)); see also Utah R. App. P.
24(a)(9).

Ernest Health v. Labor Commission
20141138-CA 	15 	2016 UT App 48
Goodman, 2006 UT 27, ¶ 29, 135 P.3d 874). Ernest Health has not
met its burden here.
¶18 	The ALJ made specific findings that Breivik “experiences
severe pain in several of her extremities” including “the right
shoulder, left hand, hips, thighs, knees and feet”; that she “has
difficulty gripping, lifting and writing”; that she “can’t use the
last 3 digits of her right hand” or “the pointer finger and thumb
on her left hand”; that she “suffers from anxiety and depression”
and that she “has difficulty with her memory and concentration”
as well as “emotional . . . problems” as a result of the industrial
accident. Ernest Health does not refer to or even acknowledge
these findings, much less point out how they fall short of what is
required by law under the circumstances of this case. Indeed,
Ernest Health has not directed us to any statute, rule, or case law
that addresses the level of specificity the law requires in the
context of a re-employment plan order. Further, Ernest Health
has not explained in any detail what additional findings would
be necessary as a practical or legal matter for it to prepare a re-
employment plan. In fact, Ernest Health fails to explain what a
re-employment plan is or where it fits within the statutory or
regulatory scheme applicable to the kind of disability at issue
here. 	Accordingly, 	Ernest 	Health 	has 	failed 	to 	develop 	its
argument 	or 	provide 	any 	meaningful 	legal 	analysis. 	As 	a
consequence, 	we 	are 	not 	persuaded 	that 	any 	claimed
shortcomings in the ALJ’s findings substantially impeded Ernest
Health’s ability to submit a re-employment plan.
¶19 	For the reasons stated above, we decline to disturb the
Commission’s order.