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Macy's Southtowne Center v. Labor Commission

Court of Appeals of Utah

August 29, 2019

Macy's Southtowne Center, Petitioner,
v.
Labor Commission and Diahann T. Jensen, Respondents.

          Original Proceeding in this Court

          Theodore E. Kanell and Daniel E. Young, Attorneys for Petitioner

          Loren M. Lambert, Attorney for Respondent Diahann T. Jensen

          Judge Jill M. Pohlman authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.

          OPINION

          POHLMAN, JUDGE

         ¶1 Macy's Southtowne Center (Employer) petitions for review of the Labor Commission's preliminary award of permanent total disability benefits in favor of Diahann T. Jensen (Claimant). Employer challenges the Commission's findings regarding Claimant's maximum medical improvement (MMI) and her ability to perform other work reasonably available. We conclude that substantial evidence supports the Commission's findings, and we therefore decline to disturb its order.

         BACKGROUND

         ¶2 Claimant sustained a lower-back injury while working as a sales associate for Employer in April 2007. Claimant sought treatment for her injury, and Employer accepted liability, paid her temporary total disability compensation, and agreed in 2008 to permanent partial disability compensation based on an impairment rating of 13% of her lower back.

         ¶3 Claimant returned to work in October 2012 and worked for Employer for another month, but because she was "unable to think clearly or perform the physical aspects of her job duties," she found "a more sedentary job" with another company from December 2012 to July 2013. She could not continue in that position, however, due to chronic pain and side effects of medication.

         ¶4 In 2015, Claimant filed an application for a hearing, seeking permanent total disability compensation. The administrative law judge (ALJ) entered a preliminary award of permanent total disability benefits to Claimant after an evidentiary hearing. On Employer's motion for review, the Commission set aside the preliminary award and remanded the matter for referral to a medical panel on the issue of Claimant's medical stability.

         ¶5 The appointed medical panel, consisting of two experts in occupational medicine, concluded that Claimant had reached MMI, i.e., "medical stability from her work-related low-back injury." It explained that her condition "has been stable since 2015-after fusion and trial with spinal cord stimulator ended." After receiving this report, the ALJ again found that Claimant was entitled to a preliminary award of permanent total disability benefits. Employer filed another motion for review with the Commission.

         ¶6 The medical record before the Commission did not contain treatment records pertaining to Claimant's work injury that predated 2012, but the Commission found evidence that Claimant underwent a discectomy in 2007. Claimant also underwent fusion surgery involving hardware placement in August 2013 and later underwent additional treatment to address a mal-positioned screw and to remove the hardware fixation system. When Claimant continued to experience lower-back pain, she had a spinal cord stimulator implanted in August 2014.

         ¶7 Eight months later, a doctor (Doctor) assessed Claimant with a 12% whole-person impairment rating for her lumbar-spine fusion. On May 12, 2015, Doctor wrote a letter outlining Claimant's capacity and stating that Claimant had reached MMI. On July 2, 2015, a physician assistant (Physician Assistant) for Claimant's surgeons stated that Claimant was unable to work due to chronic lower-back pain. This was the earliest date in the medical records that indicated Claimant could not work.

         ¶8 In December 2015, Claimant's functional capacity was evaluated. The resulting evaluation showed that Claimant could function only at "the sedentary physical-demand level for a maximum of 0-3 hours per day and could sit, stand, and walk on an occasional basis." It also showed that she "was capable of frequently reaching, gripping, writing, typing, and fingering, but she was unable to ...


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