Kahler v. Husereau

IN THE UTAH COURT OF APPEALS

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Kahler Corp. and/or General Casualty/C.W. Reese,
Petitioner,

v.

Martin Husereau and Labor Commission,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020766-CA
 

F I L E D
(July 10, 2003)
 

2003 UT App 239

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Original Proceeding in this Court

Attorneys: Brad C. Betebenner, Cheri M. Stringham, and Mark R. Sumsion, Salt Lake City, for Petitioner

Alan Hennebold, Salt Lake City, and Phillip B. Shell, Murray, for Respondents

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Before Judges Jackson, Billings, and Davis.

BILLINGS, Associate Presiding Judge:

Petitioners claim the Utah Labor Commission (the Commission) erred in upholding the Administrative Law Judge's (ALJ) decision not to refer this case to a medical panel. Specifically, Petitioners dispute the Commission's findings that Dr. Chung did not offer a conflicting medical opinion regarding the cause of Respondent's injury, and that the medical evidence was therefore not in dispute. We affirm.

An ALJ must submit a case to a medical panel where there are "conflicting medical reports," including "[c]onflicting medical opinions related to causation of the injury or disease." Utah Admin. Code R602-2-2. "Whether there are conflicting medical reports is a question of fact." Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 677 (Utah 1997) (stating standard of review in context of Industrial Commission's similar rule). Thus, "[w]e must uphold the Commission's factual findings if such findings are supported by substantial evidence based upon the record as a whole." Id.; see Utah Code Ann. § 63-46b-16(4)(g) (1997).(1) The "substantial evidence" standard "requires
only such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," WWC Holding Co. v. Public Serv. Comm'n, 2002 UT 23,¶8, 44 P.3d 714 (quotations and citation omitted), "even if another conclusion from the evidence is permissible." Whitear v. Labor Comm'n, 973 P.2d 982, 984 (Utah Ct. App. 1998) (quotations and citations omitted).

We conclude the Commission's findings are supported by substantial evidence. A reasonable reading of Dr. Chung's report supports the conclusion that Dr. Chung's stated opinions regarding causation were based on non-medical beliefs.(2) To the extent Dr. Chung offered a medical opinion, he neutrally indicated the "medical literature [n]either supports [n]or contradicts" the position taken by other evaluators. Thus, we uphold the Commission's conclusion that there were no conflicting medical reports, and that the ALJ was therefore not required to submit the case to a medical panel.(3) Affirmed.

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Judith M. Billings,

Associate Presiding Judge

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WE CONCUR:

______________________________

Norman H. Jackson,

Presiding Judge

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James Z. Davis, Judge

1. "Because [Petitioners] challenge[] an agency adjudication, the Utah Administrative Procedures Act, Utah Code Ann. §§ 63-46b-1 to -22 . . . governs [our] review of the Commission's determinations." Thorup Bros. Constr., Inc. v. Auditing Div. of the Utah State Tax Comm'n, 860 P.2d 324, 327 (Utah 1993).

2. For instance, Dr. Chung twice opined that the question of causation was "legal," "rather than medical," and additionally phrased his opinion as "from a social/economic standpoint."

3. We decline to reach Petitioners' other claim that the Commission erroneously disallowed Petitioners the opportunity to obtain clarification of Dr. Chung's report. Petitioners never asked the Commission for such an opportunity, and raise this issue for the first time on appeal. "It is well settled that issues not raised before the Commission are waived on appeal." Whitear v. Labor Comm'n, 973 P.2d 982, 985 (Utah Ct. App. 1998). The ALJ's decision alerted Petitioners as to the problem, yet Petitioners did not mention the possibility of obtaining clarification in their Motion for Review or at any other time.