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Gary Atkin

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In 2009, a hospital worker fell and hit her right hand on the cement, causing her to "hyper-extend her right small finger and right ring finger.  An MRI revealed ligament damage but no fractures.  A few months later, she was diagnosed with complex regional pain syndrome, anxiety and depression, all of which originated from the fall.  She continued to work in a light duty capacity for nearly two years, until she was terminated "because she did not have a full work release.  Two years later, she applied for permanent total disability compensation, for which the ALJ made a preliminary finding, triggering a review period during which the employer could submit a reemployment plan.  The Commission upheld the ALJ's preliminary determination and the employer sought relief from the Court of Appeals.  The employer argued the Commission should have reopened the record to allow them to submit a video surveillance secured after the hearing and a supplemental medical report based on that video.  Employer also contended that the Commission should have directed the ALJ to submit the medical issues to a medical panel and that the Order of the ALJ provided an insufficient basis for the employer to develop a reemployment plan.  The Commission had rejected these arguments in affirming the ALJ's Preliminary Order, both on Employer's Motion for Reive and subsequent Motion for Reconsideration, declaring that they did not find that the proffered video and report warranted re-opening the record and, further, that the Employer had failed to explain why it had waited until after the hearing was over and the record was closed to obtain that additional "evidence".  The Court of Appeals affirmed that determination, declaring that, even on appeal, the Employer had failed to provide any explanation of why it was unable to obtain the surveillance video prior to the Hearing.  Further, the Court explained that, contrary to the Employer's claims, there was sufficient evidentiary support for the ALJ to decide that any true conflict between the medical opinions in the record was "obscure" at best as to matters of import and, therefore, the Commission properly exercised its discretion to determine a medical panel was not required.  Ernest Health, Inc. v. Labor Comm'n, 2015 UT App. 48, 369 P. 3d 462 (Utah App., 2016)
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