Murphy v. State Retirement Board

Murphy v. State Retirement Board

IN THE UTAH COURT OF APPEALS

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JoAnna Murphy,

Petitioner,

v.

State Retirement Board, Long Term Disability Program,

Respondent.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020942-CA
 

F I L E D
(April 15, 2004)
 

2004 UT App 109

 

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Original Proceeding in this Court

Attorneys: L. Kathleen Ferro, Salt Lake City, for Petitioner

David B. Hansen, Salt Lake City, for Respondent

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Before Judges Bench, Davis, and Greenwood.

GREENWOOD, Judge:

Petitioner, JoAnna Murphy, appeals the order of the Utah State Retirement Board (Board), denying her petition for permanent and total long-term disability benefits. Murphy argues that the Board erroneously applied the "residuum rule" when it failed to include consideration of medical records and medical statements in its findings of fact. Murphy further argues that the Board erred by placing the full burden of proof on her to establish she had a "total disability." Utah Code Ann. § 49-9-103(9) (Supp. 2000). Finally, Murphy argues that the Board's decision was not supported by substantial evidence. We affirm.

Under the Utah Administrative Procedures Act (UAPA), this court can grant relief where "a person seeking judicial review has been substantially prejudiced [because] . . . the agency has erroneously interpreted or applied the law." Id. § 63-46b-16(4) (1997). Further, "[a]n agency's findings of fact . . . are accorded substantial deference and will not be overturned if based on substantial evidence, even if another conclusion from the evidence is permissible." Hurley v. Board of Review of Indus. Comm'n, 767 P.2d 524, 526-27 (Utah 1998). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Grace Drilling Co. v. Board of Review, 776 P.2d 63, 68 (Utah Ct. App. 1989) (quotations and citation omitted).

Murphy first argues that the Board improperly applied the "residuum rule" regarding use of hearsay evidence in administrative proceedings. She claims that the Board failed to consider the numerous exhibits, medical reports, and medical statements introduced at the hearing. It is undisputed that under the UAPA, hearsay evidence is admissible in administrative hearings. See Utah Code Ann. § 63-46b-10(3) (Supp. 2003); see also Wagstaff v. Department of Employment Sec., 826 P.2d 1069, 1072 (Utah Ct. App. 1992). However, "'findings of fact cannot be based exclusively on hearsay evidence. They must be supported by a residuum of legal evidence competent in a court of law.'" Wagstaff, 826 P.2d at 1072 (citation omitted).

While Murphy argues that the Board improperly excluded her hearsay evidence from consideration, the record is clear that the evidence was admitted and considered by the Board.(1) Murphy alternatively asserts that even if admitted, the Board improperly disregarded the hearsay information because it lacked a "residuum of legal evidence" supporting her position. This argument is also unpersuasive. Murphy failed to introduce any competent non-hearsay evidence of a "medically determinable physical impairment." Utah Code Ann. § 49-9-103(9). Other than the hearsay documents, Murphy provided only her own testimony and that of Dr. Bateman, neither of which provided medically determinable evidence based on "accepted clinical and laboratory diagnostic techniques." Id. § 49-9-103(6). Therefore, the Board did not erroneously apply Utah Code Annotated section 63-46b-10(3) regarding the use of hearsay evidence in administrative proceedings. See id. § 63-46b-16(4)(d).

Murphy next argues that the Board erred in concluding that under the law, she bore the burden of proof, and that the Board did not have the burden of determining she was capable of "reasonable" employment. The Board held that under Utah Code Annotated section 49-1-610 (Supp. 2001),(2) Murphy bore the burden of proving she was not capable of "reasonable" employment. Section 49-1-610(4) states "the moving party in any proceeding brought under this section shall bear the burden of proof."(3) The Board further concluded that "[t]he Utah State Retirement Board is not subject to any state or federal statute, rule, or common law, such as any shifting burden standard . . . under Utah Code Annotated, Title 49." Murphy's argument that the Board should share in the burden of determining possible "reasonable employment" under the definition of "total disability" is unpersuasive and unsupported by any legal authority. The plain language of section 49-1-610(4) clearly imposes the burden of proof on Murphy to demonstrate that she has a "total disability." Murphy's argument that the Board has the burden of proof contradicts the plain language of this section. We will not construe an unambiguous statute so as to contradict its plain meaning. See Johnson v. Utah State Ret. Bd., 770 P.2d 93, 95 (Utah 1988). Murphy presented no evidence that the Board did anything other than apply the plain meaning of section 49-1-610(4) when it imposed the burden of proof on Murphy.

Murphy lastly argues that the Board's decision was not supported by substantial evidence. In her appeal to the Board, Murphy was required to prove that she was "totally disabled" as defined in Utah Code Annotated section 49-9-103(9),(4) which reads:

"Total Disability" means the complete inability, due to medically determinable physical or mental impairment, to engage in the employee's regular occupation during the elimination period and the first 24 months of disability benefits. Thereafter, "total disability" means the complete inability, based solely on medically determinable physical impairment, to engage in any gainful occupation which is reasonable, considering the employee's education, training, and experience. "Total disability" exists only if during any period of "total disability" the employee is under the regular care of a physician other than the employee.

Id. (emphasis added).

The term "medically determinable impairment" is defined in 49-9-103(6)(5) as:

an impairment that results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by the individual's statement of symptoms.

Id. (emphasis added).

Based on these two definitions, Murphy had the burden of presenting to the Board medical evidence of her physical impairment, other than her own statement of the symptoms. She further had to prove that because of this impairment she was unable to work in an occupation that was reasonable, given her circumstances. At the hearing, besides Murphy's own testimony, Dr. Bateman was the only witness Murphy called to testify. However, Dr. Bateman testified that she did not perform any objective tests on Murphy, but relied on Murphy's own description of her pain and fatigue. Therefore, without introducing any non-hearsay evidence of an impairment based on medically accepted clinical and laboratory diagnostic techniques, the Board did not have "a residuum of legal evidence" allowing it to rely on the additional hearsay evidence.

The record also reflects that the Board's decision was not based only on Murphy's failure to meet her burden, but also on medically accepted clinical and laboratory diagnostic evidence supplied by the Board's own expert witness. The Board called a physical therapist, Cory Davis, who examined Murphy and conducted various physical tests over a two day period. Davis testified that the test results demonstrated that Murphy was able to perform light duty work, and was capable of at least a sedentary type job, thus not meeting the definition of "totally disabled." Based on the evidence in the record, Murphy has failed to show that the Board's conclusions were "not supported by substantial evidence when viewed in light of the whole record before the court." Utah Code Ann. § 63-46b-16(4)(g).(6)

Because the Board properly interpreted and applied Utah law on the use of hearsay evidence in administrative proceedings, see Wagstaff v. Department of Employment Sec., 826 P.2d 1069, 1072 (Utah Ct. App. 1992), and because Murphy failed to meet her burden of proving a "total disability," we find that the Board's findings and conclusions were supported by substantial evidence.
Therefore, we affirm the Board's denial of Murphy's appeal for permanent and total long-term disability benefits.

______________________________

Pamela T. Greenwood, Judge

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WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

1. Although Murphy initially contends in her brief that the Board excluded the evidence, she later acknowledges that all of her hearsay exhibits were admitted into evidence by the Board.

2. Utah Code Annotated section 49-1-610 (Supp. 2000) was renumbered in 2002 and now appears as Utah Code Annotated section 49-11-613 (2002).

3. In her reply brief, Murphy raises an additional argument that the Board erred by relying on the 2001 version of Utah Code Annotated section 49-1-610 (Supp. 2001). Section 49-1-610(4), imposing the burden on the moving party, was added in 2001. Murphy argues for the first time in her reply brief that because her original claim was filed in 1998, and her appeal to the Board was already under way by 2001, the Board should not have relied on the burden of proof provision added in 2001. However, Murphy failed to raise this issue either in the proceedings below or in her opening brief. In fact, Murphy relied on the 2001 version of the statute in her opening brief by acknowledging that "[i]t is true that the Utah State Retirement and Insurance Benefit Act imposes a burden of proof upon appellants." As a general rule, an issue that is raised for the first time in a reply brief will not be considered on appeal. See Eddy v. Albertson's, Inc., 2001 UT 88,¶21, 34 P.3d 781 ("It is well established that we will not consider matters raised for the first time in the reply brief."); see also Utah R. App. P. 24(c) ("Reply briefs shall be limited to answering any new matter set forth in the opposing brief."). Therefore, we decline to review Murphy's argument that the Board improperly relied on Utah Code Annotated section 49-1-610(4) (Supp. 2001).

4. Murphy again argues for the first time in her reply brief that the Board erred in applying the wrong version of Utah Code Annotated section 49-9-103(9) (Supp. 2000). She cites the 1998 version which defines "Total Disability" in part as an "inability due to injury or illness based solely on 'physical impairment.'" Utah Code Ann. § 49-9-103(9) (1998). In 1999 and 2000, the definition was amended to its current form. For the same reasons noted in footnote 3, we do not address Murphy's argument that the Board applied the wrong statute.

5. Utah Code Annotated section 49-9-103 which contained these two definitions was renumbered in 2002 and now appears as Utah Code Annotated section 49-21-102 (Supp. 2003).

6. While Murphy disagrees with the Board's interpretation of Mr. Davis's conclusions, as well as the Board's treatment of Dr. Bateman's testimony, when evidence is conflicting, "we defer to the Board's assessment." Albertson's, Inc. v. Department of Employment Sec., 854 P.2d 570, 575 (Utah Ct. App. 1993). "We are in no position to second guess the detailed findings of the [hearing officer] which were adopted by the Board." Id.