Shearer v. Labor Commission

----ooOoo----

Gordon Shearer,
Petitioner,

v.

Labor Commission, Lin's Marketplace,
and Great American Insurance,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010763-CA
 

F I L E D
November 15, 2002
2002 UT App 379
-----

Original Proceeding in this Court

Attorneys:
Aaron J. Prisbrey, St. George, for Petitioner
Thomas C. Sturdy, Kristy L. Bertelsen, and Alan Hennebold, Salt Lake City, for Respondents

-----

Before Judges Billings, Bench, and Greenwood.

BENCH, Judge:

Petitioner argues that "the findings of the . . . Utah Labor Commission in denying petitioner permanent total disability benefits were erroneous, incorrect, and arbitrary and capricious." "A party seeking to overturn the Commission's factual findings 'must marshall [sic] all of the evidence supporting the findings and show that despite the supporting facts, and in light of the conflicting or contradictory evidence, the findings are not supported by substantial evidence.'" Whitear v. Labor Comm'n, 973 P.2d 982, 984 (Utah Ct. App. 1998) (citation omitted) (alteration in original).

In order to properly discharge the duty of marshaling the evidence, the [challenging party] must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the [challenging party] resists. After constructing this magnificent array of supporting evidence, the [challenging party] must ferret out a fatal flaw in the evidence.

West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991). Petitioner fails to properly marshal all the evidence supporting the Commission's decision. In particular, Petitioner fails to "ferret out a fatal flaw" in evidence supporting the Commission's decision. Id. Notwithstanding Petitioner's marshaling problems, our review of the record, including the surveillance video, reflects substantial evidence to support the Commission's decision.

Utah Code Ann. § 34A-2-413(1) (2001),(1) provides in relevant part: (c) To find an employee permanently disabled, the commission shall conclude that:
. . . . (iv) the employee cannot perform other work reasonably available, taking into consideration the employee's age, education, past work experience, medical capacity, and residual functional capacity. Utah Code Ann. § 34A-2-413(1)(c)(iv). The evidence in this case demonstrated that "the employee [could] perform other work [that is] reasonably available"; therefore, Petitioner was not "permanently disabled." Id.

Finally, Petitioner cites Utah Code Ann. § 34A-2-413(6)(a)(ii) and Rule R612-1-10 of the Utah Administrative Code, arguing that "the failure to hold a hearing to determine if he can be reemployed violates state statute and the . . . Commission's own rule governing cases such as this." Petitioner misconstrues the law. Both the statute and the administrative rule come into play only upon a finding or preliminary finding of permanent total disability. Any finding or preliminary finding of permanent total disability was appropriately denied by the Commission. Therefore, there was no violation of the statute or rule.

Accordingly, we affirm the decision of the Commission.
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 

______________________________
Pamela T. Greenwood, Judge

1. At the time of Petitioner's work accident, the provisions for permanent total disability compensation were codified as section 35-1-67. The provisions were renumbered as section 34A-2-413, without any substantive changes. For convenience, we refer to the provisions as they are currently numbered.