Borja v. Labor Commission

2014 UT App 123, 327 P.3d 1223, 761 Utah Adv. Rep. 7, 2014 WL 2441816, 2014 Utah App. LEXIS 124
CourtCourt of Appeals of Utah
DecidedMay 30, 2014
DocketNo. 20130157-CA
StatusPublished
Cited by2 cases

This text of 2014 UT App 123 (Borja v. Labor Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borja v. Labor Commission, 2014 UT App 123, 327 P.3d 1223, 761 Utah Adv. Rep. 7, 2014 WL 2441816, 2014 Utah App. LEXIS 124 (Utah Ct. App. 2014).

Opinion

Memorandum Decision

GREENWOOD, Senior Judge:

11 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.

T2 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 Work-Med 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 sean indicated multiple dise bulges as well as multilevel spondylosis with degenerative disease, facet-Jjoint arthro-pathy, and foraminal and canal narrowing. He was treated with lumbar epidural steroid [1224]*1224injections but reported worsening pain. Bor-ja consulted with Dr. Michael Major, who recommended spinal decompression and fusion surgery as necessary to alleviate his spinal condition.

T3 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.2 Dr. Knoebel stated that lumbar decompression and fusion surgery was "not reasonable or indicated" as there was "[nlo objective evidence of pseudoclaudication or lumbar radi-culopathy" and there was "significant pain amplification behavior."

1 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 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 "Itlhe 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.

15 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 eredi-bility 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."

16 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 panel's report3 The Board affirmed the ALJ's decision. The Board 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 Wad-dell signs, it is clear the medical panel did not find his presentation to be eredible or [1225]*1225that he required future medical care for his injury beyond non-narcotic pain medication."

17 Regarding the ALJ's refusal to hold a hearing on Borja's objection to the medical panel report, the Board determined that Bor-ja 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 Wad-dell signs in reaching its conclusions." Therefore, the Board concluded that the ALJ appropriately declined to hold a hearing.

18 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.

{9 Procedures regarding objections to a medical panel report are contained in Utah Code subsections 34A-2-601@)(d)@) and (ifi). A party may file a written objection "[wlithin 20 days after the [medical] report" is mailed to the parties Utah Code Ann. § 34A-2-601(2)(d)(if) (LexisNexis Supp. 2018). 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@@0) {emphasis added).4 Thus, the statute grants the ALJ discretion in 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)).

110 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 because of these deficiencies there was not an adequate foundation for admission of the medical panel report.

T11 The Johnston v. Labor Commission decision informs our analysis in this case.

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Bade-Brown v. Labor Commission
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Bluebook (online)
2014 UT App 123, 327 P.3d 1223, 761 Utah Adv. Rep. 7, 2014 WL 2441816, 2014 Utah App. LEXIS 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borja-v-labor-commission-utahctapp-2014.