Swift Transportation v. Labor Commission

2014 UT App 104, 326 P.3d 678, 760 Utah Adv. Rep. 35, 2014 WL 1830988, 2014 Utah App. LEXIS 106
Court of Appeals of Utah·Decided May 8, 2014·No. No. 20130507-CA·Published·Cited by 6 cases

Opinion

Memorandum Decision

CHRISTIANSEN, Judge:

T1 Swift Transportation and its insurer, Ace American Insurance, petition for judicial review of a Labor Commission decision awarding permanent total disability benefits to Paul McClendon. Because Swift has not shown that the Commission erred in determining that McClendon is permanently and totally disabled, we decline to disturb the Commission's order.

{2 McClendon was injured on October 4, 2008, while inspecting a refrigerated truck [679] container.1 To check the refrigerant level, McClendon had climbed some six feet off the ground on a ladder to access the refrigeration unit located on the outside of the container. As McClendon was checking the sight glass that indicated the refrigerant level, the glass blew out, and he was hit in the face with a spray of refrigerant and oil. The force of the blowout knocked MeClendon to the ground, where he landed on a pile of metal.

T3 McClendon was treated that same day for exposure to the refrigerant and injuries from his fall. He was seen three days later by his primary-care physician, complaining of headaches, memory loss, poor balance, neck stiffness, numbness in his fingers, and pain in his left knee. He was diagnosed with a concussion and further treated for exposure to the refrigerant. McClendon attempted to return to work shortly after the accident, but he suffered a blackout while driving and was released from work by his physician. McClendon continued to seek treatment for both his physical injuries and his cognitive difficulties.

{ 4 In July 2009, McClendon underwent a medical evaluation at Swift's request. He was diagnosed with headaches related to the industrial accident and chronic cervical spine pain. The evaluating doctor found no evidence of cognitive dysfunction and did not attribute McClendon's other conditions to the industrial accident The doctor deemed McClendon medically stable, and McClendon returned to light-duty work. However, he had difficulty performing his work, including working on the computer and completing paperwork. On September 9, 2009, Swift terminated McClendon because he could no longer perform his job.

T5 After his termination, McClendon filed an application with the Commission for permanent total disability benefits. MecClen-don's primary-care physician performed an evaluation of McClendon's mental residual functional eapacity. That evaluation identified numerous cognitive difficulties, including severe limitations on MeClendon's ability to carry out instructions, maintain attention and concentration for extended periods, and travel in unfamiliar places. Another doctor performed an assessment of McClendon's physical residual functional capacity. Based on that assessment, the doctor recommended physical restrictions, including not frequently lifting more than ten pounds and not sitting or standing more than six hours in a workday. McClendon was given a 10% whole person impairment rating as a result of his cognitive difficulties and a 5% whole person impairment rating as a result of his physical injuries. McClendon's primary-care physician opined that MeClendon could not return to work given his physical restrictions and cognitive difficulties. Swift also hired a doe-tor to perform a medical evaluation of McClendon. That doctor attributed the majority of McClendon's difficulties to preexisting conditions, questioned whether McClen-don had experienced an industrial accident at all, and opined that McClendon was capable of returning to work subject to some lifting restrictions.

T6 Because of the conflicting medical evidence, the administrative law judge assigned to consider the claim (the ALJ) referred the medical issues to a medical panel. After examining McClendon and reviewing his medical history, the medical panel opined that McClendon had preexisting cognitive difficulties unrelated to the accident, but that his "problems with perceptual organization and intermittent lapses in attention are likely to have been exacerbated on a permanent basis by the industrial injury." The panel also opined that the accident may have permanently aggravated a preexisting cervical spine condition and that there was therefore a demonstrable causal connection between the accident and McClendon's cervical spine condition and left extremity numbness and pain. The panel ultimately attributed to the accident a 8% whole person impairment due to McClendon's cognitive impairment and a [680]*6803% whole person impairment due to his cervical condition. After receiving the medical panel's report, the ALJ found that McClen-don was permanently and totally disabled as a result of the accident and ordered Swift to pay benefits to McClendon. Swift moved the Commission for review of the ALJ's order. The Commission adopted the ALJ's findings of fact and affirmed the ALJ's determination that McClendon was permanently and totally disabled. Swift now seeks judicial review of that order.

T7 To establish entitlement to permanent total disability benefits based on an industrial accident, an employee must demonstrate that "the employee sustained a significant impairment or combination of impairments as a result of the industrial accident," that the employee now has a permanent total disability, and that the industrial accident is the direct cause of the permanent total disability. Utah Code Ann. § 34A-2-418(1)(b) (Lexis-Nexis 2011). And to show the existence of a permanent total disability, the employee must prove (1) that the employee is not gainfully employed; (2) that the employee has impairments that limit the employee's ability to do basic work activities; (8) that industrially or occupationally caused impairments prevent the employee from performing the "essential functions" of the work for which the employee was qualified before the accident; and (4) that the employee cannot perform "other work reasonably available." Id. § 84A-2-418(1)(c). Swift challenges only the Commission's findings that McClendon's impairments limit his ability to perform basic work activities and that his work-related impairments prevent him from performing the essential functions of the work he performed before the accident.

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Swift Transportation v. Labor Commission, 2014 UT App 104, 326 P.3d 678, 760 Utah Adv. Rep. 35, 2014 WL 1830988, 2014 Utah App. LEXIS 106 (Utah Ct. App. 2014).

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