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Gary Atkin

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A worker was injured while standing on a ladder, checking the refrigerant level on a truck container.  As he was doing so, the glass blew out, he was hit in the ace with a spray of refrigerant and oil, and was knocked to the ground onto a pile of metal.  He was treated that day for exposure to the refrigerant and his injuries and 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 was further treated for his exposure to the refrigerant.  He attempted to return to work shortly afterwards but suffered a blackout while driving and was released from work by his physician.  Some time later, he was examined by his employer's doctor and was diagnosed with headaches related to the accident and chronic cervical spine pain but the doctor asserted he found no evidence of any cognitive disfunction and did not attribute any of the other continuing conditions to the accident.  That doctor released him to return to light duty work.  However, he had difficulty performing that work and the Employer subsequently terminated him because he could no longer perform his job.  He then filed for PTD benefits.  His doctor performed an evaluation of his mental residual functional capacity and identified severe cognitive limitations.  Another doctor reviewed his physical functional capacity and recommended significant physical restrictions.  His doctor gave him a 10% whole person impairment for the cognitive difficulties and 5% for the physical injuries and opined he could not return to work.  The Employer's doctor opined that the majority of the difficulties were due to preexisting conditions, questioned whether he had actually experienced an accident, and opined that he was capable of returning to work with only some lifting restrictions.  The ALJ appointed a medical panel due to the conflicting opinions and the Panel Report found there were pre-existing cognitive and cervical spine conditions but that his accident had permanently exacerbated some of those problems.  The Report attributed 3% whole person impairment for the cognitive aggration and 3% whole person for the cervical aggravation.  The Report also stated that, standing alone, the residual effects of his concussion would result in "very few work restrictions" but did not state those restrictions would not limit his ability to perform basic or essential work functions.  The ALJ issued a Preliminary Order declaring he was permanently totally disabled due to the industrial accident.  The Commission supported the ALJ's determination.  On appeal, the Employer argued that the Commission had improperly substituted its own findings for those of the Medical Panel which found "very few work restrictions."  The Court affirmed the Commission declaring that the ALJ's Order was not inconsistent with the medical panel report and, even if it was, the Commission is not bound by the Medical Panel's determinations and may properly consider all of the evidence before it in reaching its determinations.  The Court re-emphasized that it is not for the Court of Appeals to re-weigh the evidence to decide of the Commission's Order is correct.  It will only look to see if there is sufficient evidence before the Commission on which it could base its Order.  Swift Transportation v. Labor Comm'n, 2014 UT App. 104, 326 P. 3d 678 (Utah App., 2014)
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