Booms v. Rapp Construction Co.

720 P.2d 1363, 35 Utah Adv. Rep. 13, 1986 Utah LEXIS 811
CourtUtah Supreme Court
DecidedJune 6, 1986
Docket19803
StatusPublished
Cited by13 cases

This text of 720 P.2d 1363 (Booms v. Rapp Construction Co.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Booms v. Rapp Construction Co., 720 P.2d 1363, 35 Utah Adv. Rep. 13, 1986 Utah LEXIS 811 (Utah 1986).

Opinions

DURHAM, Justice:

Tommy Booms (the claimant) appeals from a decision of the Industrial Commission of Utah terminating temporary total disability benefits. The claimant contends that the Commission improperly terminated temporary disability benefits without making a finding of his ability to work. The claimant also seeks to have the case remanded on the ground that the administrative law judge abused his discretion when he failed to have the medical panel psychiatrist examine the medical report of the claimant’s psychiatrist. Finally, the claimant argues that the judge improperly failed to reopen the case for testimony regarding [1365]*1365the injury to the claimant’s left shoulder. We affirm in part, reverse in part, and remand for consideration of the left shoulder injury.

On December 3, 1979, the claimant was injured in an industrial accident while he was employed as a carpenter for Rapp Construction Company. The claimant was pulling concrete forms off a wall when one form popped off suddenly, causing him to wrench his right arm and shoulder. The claimant contends that he injured his left shoulder at the same time. The Industrial Commission denied Workers’ Compensation benefits for the problems associated with the left shoulder.

On May 12, 1982, the Industrial Commission held a hearing in which the administrative law judge received testimony by the claimant and referred the case to a medical panel. Because the claimant had changed attorneys shortly before the hearing, the administrative law judge agreed to permit the claimant to supplement the file regarding evidence pertaining to the left shoulder injury. The claimant submitted letters from two co-workers and a treating chiropractor supporting his contention that he injured his left shoulder at the time of the industrial accident and moved the court to reopen the hearing to receive testimony from those witnesses. The administrative law judge never acted on that motion; however, it did submit the letters to the medical panel with a cover letter which stated that although the letters were not “formally admitted into evidence ... you may assume the contents to be true and correct for purposes of your evaluation.” The medical panel examined the claimant and submitted its report to the administrative law judge. The claimant’s attorney objected to the report and requested that clarifying questions be presented to the panel.

On April 20, 1983, prior to receiving answers to the claimant’s clarifying questions, the administrative law judge issued its findings of fact, conclusions of law, and an order, reserving the right to modify that order pending answers from the medical panel. Based on the evidence presented by the medical panel, the administrative law judge found: that the period of total disability ended on August 24, 1981; that the claimant’s medical condition had stabilized on that date; and that his total physical impairment of the whole man was fifteen percent for injury to the right shoulder and related psychiatric problems. The administrative law judge acknowledged that the claimant had received $18,900 in temporary total disability benefits and $9,464.37 for medical expenses and awarded $6,552 for permanent partial disability.

On May 17, 1983, the medical panel submitted a supplemental report to the administrative law judge answering the “clarifying questions” submitted by the claimant’s counsel. In the supplemental report, the panel acknowleged that the claimant’s left shoulder was injured, but it concluded that the left shoulder injury resulted from a preexisting condition and not the industrial accident of December 3, 1979. The panel based its conclusion primarily on the fact that the claimant had not mentioned the left shoulder injury to treating physicians. The claimant objected to the supplemental report, and the administrative law judge ordered a hearing on both the original and supplemental medical panel reports. At that hearing, Dr. Green, Chairman of the Medical Panel, testified that his opinion regarding the left shoulder injury would be affected if credible witnesses stated that the claimant had complained of left shoulder pain at the time of the injury. After the hearing, the claimant submitted the deposition of a vocational and rehabilitation expert with a request for a finding of the claimant’s ability to work. On December 20, 1983, the administrative law judge issued its final order. That order affirmed its prior findings.

The first issue raised on appeal is whether the Industrial Commission can terminate temporary total disability benefits after a finding of medical stabilization without making a finding that the worker is able to return to work. An award of temporary total disability benefits is governed by U.C.A., 1953, § 35-1-65 (Supp.1985), which [1366]*1366provides: “In case of temporary disability, the employee shall receive 66 ⅜% of that employee’s average weekly wages at the time of the injury so long as the disability is total_” (Emphasis added.) The claimant argues that the underscored language requires that the disabled employee receive weekly benefits until a specific factual finding of ability to work is made and relies on our opinions in Entwistle Co. v. Wilkins, 626 P.2d 495 (Utah 1981), and United Park City Mines Co. v. Prescott, 15 Utah 2d 410, 393 P.2d 800 (1964). In Entwistle, we stated that temporary total disability may be found if the employee “can no longer perform the duties of the character required in his occupation prior to his injury.” 626 P.2d at 498 (footnote omitted).

Temporary total disability benefits are typically awarded after a worker suffers a job-related disability that prevents him or her from returning to work. The purpose of those benefits is to “provide income for an employee during the time of recuperation from his injury and until his condition has stabilized.” Id. at 497 (footnote omitted). Thus, temporary total disability benefits are to continue until the Commission determines that the disability fits into another disability classification or until benefits have been paid for the statutory maximum of 312 weeks. Every disability may be reclassified if the character of the disability changes from temporary to permanent and/or the character of the disability changes from total to partial.1

The determination of the temporary or permanent character of a disability is typically made when a claimant reaches medical stabilization. This Court has stated that temporary disability benefits “are intended to compensate a [worker] during the period of healing and until he is able to return to work_” Intermountain Health Care, Inc. v. Ortega, 562 P.2d 617, 619-20 (Utah 1977) (footnote omitted), su-perceded on other grounds by statute and rule as stated in Second Injury Fund v. Streator Chevrolet, 709 P.2d 1176 (Utah 1985). In Entwistle v. Wilkins, we indicated that total temporary benefits are to continue “until [the claimant’s] condition has stabilized.” 626 P.2d at 497 (emphasis added). Stabilization means that the period of healing has ended and the condition of the claimant will not materially improve.

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Booms v. Rapp Construction Co.
720 P.2d 1363 (Utah Supreme Court, 1986)

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Bluebook (online)
720 P.2d 1363, 35 Utah Adv. Rep. 13, 1986 Utah LEXIS 811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booms-v-rapp-construction-co-utah-1986.