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Color Country Management v. Labor Commission12/6/2001
(For Official Publication)
Original Proceeding in this Court
Color Country Management and Mid-Century Insurance Company (collectively Color Country) petition for review of the action of the Labor Commission pursuant to Utah Code Ann. §§ 34A-2-801(8) (1997), 63-46b-16 (1997), and Rule 14 of the Utah Rules of Appellate Procedure.
BACKGROUND
Because Color Country does not challenge the Appeals Board's findings of fact, we recite the relevant facts from the Board's order on Color Country's motion for review. See Osman Home Imp. v. Indus. Comm'n, 958 P.2d 240, 241 n.1 (Utah Ct. App. 1998).
Nellie Thomas was employed by Color Country at its Sizzler restaurant where she worked preparing salads and maintaining the salad bar. On October 15, 1994, Thomas, while taking dirty dishes from the salad bar to the dish-washing station, slipped in a puddle of greasy water, fell, and fractured her ulna, dislocated the radial head, and tore the rotator cuff in her left arm. She also sustained injury to her spine. Thomas had six surgical procedures over the next few years, including the attachment of a metal plate in her arm; removal of a loose screw; a bone graft and reapplication of a dynamic compression plate; surgery on her rotator cuff; surgical removal of the second plate; a cast on her arm due to a new fracture through one of the screw holes; and another surgical procedure to repair yet another fracture with another bone graft, this one through the callus.
On May 15, 1997, Thomas filed an application for a hearing regarding her workers' compensation claim. An administrative law judge (ALJ) held an evidentiary hearing on January 6, 1998. On January 8, 1998, the ALJ awarded Thomas temporary total disability benefits of $140 per week and specifically reserved ruling on permanent partial and permanent total disability.
On June 23, 1998, the same ALJ issued a supplemental order, citing a January 20, 1998 report by Dr. Scott Smith in which Dr. Smith gave Thomas a twenty percent whole person impairment rating based on the problems she had with her left arm, shoulder, and her neck. The ALJ awarded Thomas permanent partial disability benefits based on the twenty percent whole person impairment, with a credit for amounts already paid by Color Country, and reserved ruling on permanent total disability.
On August 11, 1998, the same ALJ issued a third order finding that because Thomas had reached medical stability, the issue of permanent total disability was now "ripe for determination," and concluded Thomas was "tentatively permanently totally disabled." He ordered Color Country to pay subsistence benefits of $140 per week, suspended permanent partial payments, and informed the parties that Color Country could submit a reemployment plan and request a hearing on the plan.
In September 1998, Color Country submitted a reemployment plan and requested a hearing. In the meantime, the first ALJ retired and a second ALJ held a hearing March 8, 2000, regarding the reemployment plan submitted by Color Country. On May 18, 2000, he issued an abstract based on the August 11, 1998 award. On June 14, 2000, the second ALJ issued an order in which he reaffirmed the earlier orders, rejected the reemployment plan, and entered a final award of permanent total disability.
Color Country subsequently filed two motions for review: one filed June 16, 2000, to have the Appeals Board review the propriety of the abstract, and one filed July 14, 2000, to have the Appeals Board review the compensation award.
In its October 31, 2000 order addressing the compensation award, the Board found that
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