Rushton v. Gelco Express

732 P.2d 109, 49 Utah Adv. Rep. 13, 1986 Utah LEXIS 942
CourtUtah Supreme Court
DecidedDecember 30, 1986
Docket860095
StatusPublished
Cited by10 cases

This text of 732 P.2d 109 (Rushton v. Gelco Express) 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
Rushton v. Gelco Express, 732 P.2d 109, 49 Utah Adv. Rep. 13, 1986 Utah LEXIS 942 (Utah 1986).

Opinion

DURHAM, Justice:

Plaintiff filed an application with the Industrial Commission (“Commission”) claiming both temporary total and permanent partial disability as a result of injuries she sustained in a fall. The administrative law judge ordered payment of reasonable medical expenses related to plaintiff’s back injury, and benefits for temporary total disability for the period of December 1983 through August 1984, but denied plaintiff’s claims for temporary total disability for the period of August 1984 through November 1984, and for permanent partial disability. The Board of Review of the Industrial Commission denied plaintiff’s subsequent motion for review, and plaintiff appeals that denial. We affirm.

On December 27, 1983, plaintiff slipped on some ice in her employer’s parking lot, fell to her hands and knees, and sustained an injury to her back. Plaintiff’s employer admits the injury arose out of or in the course of employment. Plaihtiff completed her work shift after the fall and reported the accident at the end of the day. Plaintiff later began to experience pain in her neck, upper back, and arms, for which she sought treatment from several specialists. Plaintiff received treatment from three specialists other than Dr. Kimball, whom she identifies in her brief as her examining physician. The three specialists conducted several tests, all of which produced normal results despite plaintiff’s continued complaints of worsening pain.

In April 1984, Dr. Gordon R. Kimball, an orthopedics specialist, began treating plaintiff for the injuries to her back and neck. Dr. Kimball’s report of January 5, 1985, indicates that on her first visit, plaintiff’s examination produced generally normal results except that an x-ray taken at that time revealed a slight reversal of the normal cervical ordodic curve. The report also indicates that plaintiff first complained to Dr. Kimball about pain in her knees in October of 1984. X-rays showed that plaintiff suffered from a knee condition. Dr. Kimball’s report states: “[Tjhere might be some argument ... whether or not the accident caused this problem although I suspect that it did.” Finally, the report indicates that if plaintiff had any permanent partial disability, it would be rated at no more than a five percent permanent partial disability of the whole person for a “chronic cervical sprain” and two percent permanent partial impairment for each knee.

On September 6, 1984, plaintiff filed an application for a hearing with the Industrial Commission, seeking compensation for a temporary total physical impairment from the date of the accident through November 30, 1984, 1 and claiming a permanent partial *111 impairment of the whole person. The administrative law judge referred the matter to a medical panel, which found that plaintiff had suffered a temporary total physical impairment from the time of the accident through August 1984 and that plaintiff had a two percent permanent partial disability due to her knee condition. The panel report also indicates that the accident may have activated a symptomatic phase of a preexisting knee condition and caused contusions, but that the knee condition was most likely congenital and developmental rather than related to the December 1983 accident.

In his supplemental order, the administrative law judge granted plaintiff an award for total temporary disability for the period of December 28, 1983, through August 31, 1984, but denied any award for total temporary disability for any period beyond August 1984 or for permanent partial disability. He also denied plaintiff recovery from the Second Injury Fund for the knee condition based on his finding that the accident only temporarily aggravated that condition. Finally, the administrative law judge awarded plaintiff attorney fees at twenty percent of the total amount of the award, twenty percent of the “balance owing,” or whichever of the two was “appropriate.”

Plaintiff contends that the evidence does not support the administrative law judge’s denial of total temporary disability compensation for the period from August 31, 1984, through November 30, 1984, 2 or his refusal to find that the accident caused plaintiffs knee condition. On an appeal from a decision by the Commission, this Court will not disturb the findings and orders of the Commission unless they are arbitrary and capricious, and they are arbitrary and capricious when they are contrary to the evidence or without any reasonable basis in the evidence. See Blaine v. Industrial Commission, 700 P.2d 1084, 1086 (Utah 1985); Savage v. Industrial Commission, 565 P.2d 782, 783 (Utah 1977). Plaintiff argues, in essence, that the findings in this case are arbitrary and capricious because the administrative law judge adopted the findings of the medical panel rather than those of Dr. Kimball, plaintiffs treating physician. According to plaintiff, the administrative law judge should have been required as a matter of law to give preference to the treating physician’s findings. 3 Because we feel that such a rule would restrict the fact-finding role of the Commission, as that role has been defined by statute and case law, we refuse to adopt it.

U.C.A., 1953, § 35-1-88 permits the Commission to receive all “relevant and material evidence,” including Commission-appointed investigators’ reports and attending or examining physicians’ reports. U.C.A., 1953, § 35-1-85 requires the Commission to make findings of fact and provides that those findings are conclusive. Moreover, decisions from this Court have repeatedly reaffirmed the fact-finding role of the Commission and have stated that the Commission must look at all relevant evidence in reaching its findings without being restricted to giving evidence from specific witnesses more weight than that from other witnesses. See Shipley v. C & W Contracting Co., 528 P.2d 153, 155 (Utah 1974) (the Commission is not necessarily *112 bound to accept the opinions of any witness or witnesses, expert or otherwise); Mollerup Van Lines v. Adams, 16 Utah 2d 235, 240, 398 P.2d 882, 885 (1965) (the Commission had both the prerogative and duty to view the entire testimony of the medical panel doctor and believe those statements that impressed it). As the foregoing authorities indicate, the Commission is the principal fact finder and, as such, may review all relevant evidence. See generally Mellen v. Industrial Commission, 19 Utah 2d 373, 374, 431 P.2d 798, 799 (1967). Adopting the position advocated by plaintiff would necessarily narrow the evidence the Commission could rely upon and could result in increasing the potential for bias in proceedings before the Commission. A claimant could hire a physician to testify favorably even though other evidence did not support the physician’s testimony.

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Bluebook (online)
732 P.2d 109, 49 Utah Adv. Rep. 13, 1986 Utah LEXIS 942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rushton-v-gelco-express-utah-1986.