Opinion
Case No. 20070890-CA.
Filed October 23, 2008. Not For Official Publication
Original Proceeding in this Court.
Marland E. Torgerson, Holladay, Petitioner Pro Se.
Alan L. Hennebold and Hans M. Scheffler, Salt Lake City, for Respondents.
Before Judges Billings, Davis, and McHugh.
MEMORANDUM DECISION
Marland E. Torgerson petitions for judicial review of the Labor Commission's October 9, 2007 order affirming the Administrative Law Judge's decision which denied his claim for permanent total compensation. We affirm.
Torgerson first asserts that the Labor Commission did not have jurisdiction to enter an order denying his claim for permanent total disability benefits. The Workers' Compensation Act provides the exclusive remedy against an employer for injuries sustained by an employee "on account of any accident or injury or death, in any way contracted, sustained aggravated, or incurred by the employee in the course of or because of or arising out of the employee's employment." Utah Code Ann. § 34A-2-105(1) (Supp. 2008). Torgerson's claims arose from accidents that occurred in the course of his employment. Based on Utah Code section 34A-2-105 and the fact that the parties submitted themselves to the jurisdiction of the Labor Commission, the Labor Commission did not lack jurisdiction to consider this matter.
Torgerson next asserts that he was improperly deprived of permanent total disability benefits. The findings of fact must
be affirmed if they are supported by substantial evidence when viewed in light of the whole record. See Merriam v. Board of Review, 812 P.2d 447, 450 (Utah Ct.App. 1993). "Substantial evidence is defined as what a reasonable person `might accept as adequate to support a conclusion.'"Id.
Utah Code section 34A-2-413 sets forth the requirements that an injured worker must establish, by a preponderance of the evidence, in order to receive permanent total disability benefits. See Utah Code Ann. § 34A-2-413 (Supp. 2008). A party must establish that he or she: (1) sustained a significant impairment or combinations of impairments as a result of an industrial accident; (2) is totally disabled; (3) suffered an industrial accident that was the direct cause of the total disability; (4) is not gainfully employed; (5) has an impairment that limits the ability to do basic work activities; (6) has an impairment which prevents the ability to perform essential functions of the work activities for which he or she was qualified until the time of the industrial accident; and (7) cannot perform other work reasonably available taking into consideration his or her age, education, past work experience, medical capacity, and residual function. See id.
As required by Utah Code section 34A-2-413(1)(b)(i), Torgerson did not demonstrate that he suffered a significant impairment or combination of impairments as a result of his industrial accidents. Pursuant to Torgerson's stipulation, his medical claims were submitted to a medical panel for review. The record demonstrates that the medical panel concluded that Torgerson did not sustain a significant impairment as a result of the two industrial accidents. Because there is substantial evidence supporting this determination, we must affirm it. See Merriam, 812 P.2d at 450. Second, Torgerson did not establish that he is permanently totally disabled as required by Utah Code section 34A-2-413(1)(b)(ii). Here the record establishes that there was substantial evidence that Torgerson could go back to work as a truck driver. Third, Torgerson did not prove that the two claimed industrial accidents were the direct cause of his alleged permanent total disability. The record demonstrates that Torgerson's lower back problems were caused by a pre-existing degenerative lumbar spine disorder. Fourth, Torgerson also failed to submit evidence that he is not gainfully employed. Thus, he also failed to meet the requirement of section 34A-2-413(1)(c)(i). See id. 34A-2-413(1)(c)(I).
Torgerson was also required to demonstrate that his impairment limits his ability to perform basic work activities. See id. § 34A-2-413(1)(c)(ii). The record establishes that Torgerson was capable of performing the basic work activities associated with truck driving and that he could continue to
perform the essential functions of the work activities for which he had been qualified, admittedly, with limitations. See id. § 34A-2-413(1)(C)(iii). Lastly, there is substantial evidence supporting the determination that Torgerson could perform other work reasonably available taking into consideration his age, education, work experience, medical capacity, and residual functional capacity. See id. § 34A-2-413(C)(iv). Thus, there was substantial evidence supporting the determination that Torgerson did not qualify for permanent total disability benefits.
Torgerson next asserts that the Commission did not receive and consider all "medical and critical documentation." The record indicates that approximately fifteen months after the parties submitted their stipulated facts, Torgerson submitted additional ex parte medical evidence to the Commission. The Commission declined to consider additional evidence from his treating doctor because Torgerson had failed to establish good cause as to why the evidence was not submitted in a timely manner. Furthermore, even if the Labor Commission had received the late filing, the outcome of the case would have been the same as the additional evidence was already sufficiently detailed in the record.
Torgerson next asserts that his case should have been analyzed under the Utah Occupational Disease Act. See Utah Code Ann. § 34A-3-103. However, Torgerson characterized his injury as a workplace "accident." The Workers' Compensation Act is applicable to "accidents" arising out of and in the course of an employee's employment. See id. § 34A-2-105(1) (Supp. 2008). Alternatively, the Utah Occupational Disease Act covers workers who suffer from a "disease or illness that arises out of and in the course of employment." Id. § 34A-3-103. However, we need not further address this distinction as Torgerson failed to raise this objection in the underlying proceedings. A party must timely raise an objection in an earlier proceeding or it is waived for appellate review. See Brinkerhoff v. Schwendiman, 790 P.2d 587, 589 (Utah Ct.App. 1990). This concept of preservation is not limited to the trial court, but it applies equally to administrative proceedings. See id. Thus, we decline to address this issue.
Lastly, Torgerson appears to assert that he was not adequately represented by his attorney. Specifically, Torgerson asserts that his counsel "incorrectly used Utah Codes." Torgerson appears to imply that there is a claim for ineffective assistance of counsel in administrative cases. However, Torgerson fails to adequately brief this argument or demonstrate any legal authority for this proposition. Arguments that are inadequately briefed may be disregarded or stricken by an
appellate court. See State v. Green, 2005 UT 9, ¶ 11, 108 P.3d 710. Because Torgerson does not adequately set forth his argument as required by rule 24(a)(9) of the Utah Rules of Appellate Procedure, this court declines to address it. See Utah R. App. P. 24(a)(9).
To the extent that Torgerson has raised other issues not specifically addressed above, we determine that such issues lack merit, and we decline to address them further. See State v. Carter, 888 P.2d 629, 648 (Utah 1994).
Affirmed.
Judith M. Billings, Judge, James Z. Davis, Judge, Carolyn B. McHugh, Judge.