2014 UT App 277

_________________________________________________________

THE UTAH COURT OF APPEALS

DANNY’S DRYWALL AND AMERICAN LIBERTY

INSURANCE CO.,

Petitioners,

v.

LABOR COMMISSION AND RAFAEL SUASTEGUI BERNAL,

Respondents.

Opinion

No. 20121077-CA

Filed November 20, 2014

Original Proceeding in this Court

Mark D. Dean, Kristy L. Bertelsen, and Scott R.

Taylor, Attorneys for Petitioners

Jaceson R. Maughan, Attorney for Respondent

Labor Commission

Aaron J. Prisbrey and Trevor C. Sanders, Attorneys

for Respondent Rafael Suastegui Bernal

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in

which JUDGES MICHELE M. CHRISTIANSEN and JOHN A. PEARCE

concurred.1

BENCH, Senior Judge:

¶1 Danny’s Drywall and its insurer, American Liberty

Insurance Co., (collectively, Employer) petition for judicial review

of a Labor Commission decision awarding permanent total

1. The Honorable Russell W. Bench, Senior Judge, sat by special

assignment as authorized by law. See generally Utah R. Jud. Admin.

11-201(6).
Danny’s Drywall v. Labor Commission

disability benefits to Rafael Suastegui Bernal (Claimant). We do not

disturb the Commission’s decision.

BACKGROUND

¶2 On February 17, 2009, while working as a drywall installer

for Danny’s Drywall, Claimant “fell 14 feet from a ladder and

scaffold.” He suffered extensive bone fractures in his face and right

hand, as well as tears in the muscles and cartilage of his right

shoulder. He also experienced back and neck pain. Following

treatment, Claimant reached medical stability from his hand and

shoulder injuries, but headaches and continued chronic pain in his

right jaw, neck, and lower back affected his activity level and

ability to sleep. He was eventually diagnosed with several torn and

bulging discs in his back.

¶3 In April 2010, Claimant filed an application for permanent

total disability benefits. After a hearing, the Administrative Law

Judge (the ALJ) decided that, due to the conflicting medical

evidence concerning Claimant’smedical andfunctionallimitations,

a final determinationonhis eligibility for permanent total disability

benefits could not be made without an independent medical

review. As a result, in June 2011, the ALJ appointed a medical

panel, consisting of specialists in pain management and psychiatry.

In the medical panel referral letter, the ALJ informed the panel that

it was “bound by the Findings of Fact and Conclusions of Law

contained in my Interim Order.” As the ALJ explained, “[t]he facts

are the historical and other legal data regarding how the injury

occurred, dates and times, places, persons involved, and other

related information commonly thought of as the situational

circumstances surrounding the allegedinjury.” The ALJ also stated,

If you discover additional facts which are not

contrary to the facts in the Findings of Fact and

Conclusions of Law contained in my Interim Order,

and you use them in your examination and

evaluation, it will be necessary to include them in

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your report and explain how the additional facts

affected your analysis and conclusions.

The ALJ then instructed the medical panel to answer the following

question: “What are [Claimant’s] permanent physical restrictions

as a result of injury from the industrial accident on 2/17/2009?” The

ALJ further instructed the panel to “address in your answer the

varying opinions in the medical record and relate [Claimant’s]

functional and medical capacity restrictions regarding his ability to

work an eight hour work day including limits on standing, sitting,

missing work days and breaks needed within the work day.”

¶4 The medical panel reviewed all relevant medical records,

considered the opinions of the parties’ experts, and conducted its

own examination of Claimant. The medical panel thereafter issued

a report detailing its conclusions regarding Claimant’s functional

and medical capacity restrictions related to the industrial accident.

The medical panel diagnosed Claimant with a number of “medical

conditions, as a direct result of the February 17, 2009 industrial

accident,” including traumatic brain injury and chronic pain. The

panel determined thatClaimant hada variety of restrictions related

to lifting, sitting, and other activities. According to the panel, it was

unlikely that Claimant could be a productive worker for more than

four hours a day. Even then, the panel expected Claimant to

require additional time off due to medical care and periodic

exacerbations of his problems.

¶5 In response to the medical panel report, Employer hired a

physiatrist, Dr. Jeff Chung, to review and critique the report. In

preparing his analysis, Dr. Chung relied entirely on the panel

report and examined neither Claimant nor the underlying medical

records. Although Dr. Chung agreed with some of the medical

panel’s conclusions, Dr. Chung flatly disagreed with the panel’s

diagnoses and also opined that the panel’s report did not

adequately state a basis for some of its conclusions.

¶6 Employer filed an objection to the medical panel report,

citing Dr. Chung’s critique and arguing (1) that the panel violated

the charging order by evaluating matters not before it, (2) that the

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report was not based on reasonable medical probability, and (3)

that other substantial evidence supported a finding contrary to the

panel’s finding. The ALJ rejected all of Employer’s arguments and

admitted the medical panel report into the evidentiary record.

After considering all the evidence, the ALJ adopted the medical

panel’s opinion regarding Claimant’s functional and medical

capacity restrictions that were caused by the industrial accident

and ultimately determined that Claimant was eligible for

permanent total disability benefits.

¶7 Employer subsequently filed a motion for review with the

Commission, raising the same arguments as in its objection to the

medical panel report. Like the ALJ, the Commission rejected

Employer’s arguments. First, the Commission concluded that “the

medical panel did not exceed its authority, either in its personal

examination of [Claimant], its diagnosis of his medical problems,

or its assessment of whether those problems were caused by his

work accident.” Second, the Commission determined that, when

viewed as a whole, the medical panel report is based on the panel’s

assessment of medical probability.Third,theCommissionreasoned

that the existence of contradictory evidence was not a sufficient

reason to disregard or exclude the medical panel report. The

Commission therefore rejected Employer’s challenges to the ALJ’s

decision and the medical panel report on which it was based, and

affirmed the ALJ’s decision. This petition for judicial review

followed.

ISSUES AND STANDARDS OF REVIEW

¶8 Employer first attacks the Commission’s adoption of the

medical panel report, contending that the panel disregarded the

charging order by evaluating medical causation, diagnosis, and

past and future medical care. In particular, Employer argues that

the ALJ did not refer all of those issues to the panel when the ALJ

asked the panel to evaluate Claimant’s “permanent physical

restrictions as a result of injury from the industrial accident.”

Because Employer’s argument challenges the propriety of the

Commission’s interpretation of the ALJ’s order, we review that

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interpretation for an abuse of discretion. See A & B Mech.

Contractors v. Labor Comm’n, 2013 UT App 230, ¶ 7, 311 P.3d 528.

¶9 Employer raises two other arguments in challenging the

Commission’s award of permanent total disability benefits to

Claimant, focusing on the Commission’s adoption of the medical

panel report. “Whether the commission correctly or incorrectly

denied benefits is a traditional mixed question of law and fact.” Jex

v. Labor Comm’n, 2013 UT 40, ¶ 15, 306 P.3d 799 (citation and

internal quotation marks omitted); see also Murray v. Labor Comm’n,

2013 UT 38, ¶ 33, 308 P.3d 461 (“[A] mixed question arises when an

agency . . . must apply a legal standard to a set of facts unique to a

particular case.” (citation and internal quotation marks omitted)).

“The standard of review we apply when reviewing a mixed

question can be either deferential or nondeferential . . . .” Murray,

2013 UT 38, ¶ 36. “Deference on a mixed question is warranted

when ‘the mixed finding is not “law-like” because it does not lend

itself to consistent resolution by a uniform body of appellate

precedent’ or ‘is “fact-like” because the [factfinder] is in a superior

position to decide it.’” Jex, 2013 UT 40, ¶ 15 (alteration in original)

(emphasis omitted) (quoting Murray, 2013 UT 38, ¶ 37).

¶10 Next, Employer argues that the ALJ’s Interim Order was not

sufficiently detailed and that the ALJ’s failure to provide adequate

findings of fact led the medical panel to evaluate matters beyond

the scope of its authority. “Whether an administrative agency’s

findings are adequate is a legal determination that requires no

deference.” Blair v. Labor Comm’n, 2011 UT App 248, ¶ 14, 262 P.3d

456.

¶11 Finally, Employer argues that the Commission erred in

adopting themedical panel report because, according to Employer,

other substantial evidence supports findings contrary to the

medical panel’s findings. “We will not disturb the Commission’s

factual findings unless the party challenging the findings

demonstrates that a finding is not supported by substantial

evidence.” Swift Transp. v. Labor Comm’n, 2014 UT App 104, ¶ 8, 326

P.3d 678 (citing Murray, 2013 UT 38, ¶ 19); see also Utah Code Ann.

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§ 63G-4-403(4)(g) (LexisNexis 2011) (authorizing an appellate court

to grant relief if an “agency action is based upon a determination

of fact . . . that is not supported by substantial evidence”). “In other

words, the [Commission’s] factual findings are accorded

substantial deference and will not be overturned if based on

substantial evidence, even if another conclusion from the evidence

is permissible.” Cook v. Labor Comm’n, 2013 UT App 286, ¶ 10, 317

P.3d 464 (citation and internal quotation marks omitted). “In

conducting a substantial evidence review, we do not reweigh the

evidence and independently choose which inferences we find to be

the most reasonable.” Becker v. Sunset City, 2013 UT 51, ¶ 21, 309

P.3d 223 (citation and internal quotation marks omitted). “Instead,

we defer to [a lower tribunal’s] findings because when reasonably

conflicting views arise, it is the [fact-finder’s] province to draw the

inferences and resolve these conflicts.” Id. (alterations in original)

(citation and internal quotation marks omitted).

ANALYSIS

I. Scope of the Medical Panel Report

¶12 Employer argues that the Commission abused its discretion

in adopting themedicalpanelreport because the panel disregarded

the charging order by evaluating medical causation, diagnosis, and

past and future medical care. Employer contends that the ALJ’s

request that the panel evaluate Claimant’s “permanent physical

restrictions as a result of injury from the industrial accident” did

not authorize the panel to consider the issues of causation and

diagnosis.

¶13 Section 34A-2-601 of the Utah Code permits an

administrative law judge to refer the medical aspects of a case to a

medicalpanel.UtahCodeAnn. § 34A-2-601(1)(a) (LexisNexisSupp.

2013). Pursuant to this section, an administrative law judge will

appoint a medical panel “where one or more significant medical

issues may be involved.” Utah Admin. Code R602-2-2(A).

Significant medical issues are involved when there are, inter alia,

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“[c]onflicting medical opinions related to a claim of permanent

total disability.” Id. R602-2-2(A)(4).

¶14 When a medical panelis convened, “[t]he role of the Medical

Panel is to ‘evaluat[e] medical evidence’ and ‘advis[e] an

administrative law judge with respect to the administrative law

judge’s ultimate fact-finding responsibility.’” Blair, 2011 UT App

248, ¶ 18 (alterations in original) (quoting Utah Code Ann. § 34A-2-

601(1)(d)(ii) (Supp. 2010)). “[T]he ALJ/Commission is always the

ultimate fact finder,” Speirs v. Southern Utah Univ., 2002 UT App

389, ¶ 10, 60 P.3d 42, and “[a]lthough an administrative law judge

is not bound by the panel’s report, she may base her findings and

decision on it,” Blair, 2011 UT App 248, ¶ 18 (citing Utah Code Ann.

§ 34A-2-601(2)(e)(i)(Supp. 2010)). Consequently, “[i]tisnotunusual

for an administrative law judge and the Commission to adopt the

findings of a medical panel.” Id. ¶ 19 (citation and internal

quotation marks omitted). “However, it is the prerogative and the

duty of the Commission to consider not only the report of the

medical panel, but also all of the other evidence and to draw

whateverinferences and deductions fairly and reasonably could be

derived therefrom.” Id. (citation and internal quotation marks

omitted). Indeed, the medical panel’s “proper purpose is limited to

medical examination and diagnosis, the evidence of which is to be

considered by the Commission in arriving at its decision.”

Intermountain Health Care, Inc. v. Board of Review of the Indus.

Comm’n, 839 P.2d 841, 845 n.5 (Utah Ct. App. 1992) (citation and

internal quotation marks omitted). 

¶15 In this case, the ALJ appointed a medical panel after first

determining that conflicting medical evidence concerning

Claimant’s medical and functional limitations required an

independent review of the medical evidence. The ALJ specifically

directed the medical panel to answer the following question: “What

are [Claimant’s] permanent physical restrictions as a result of

injury from the industrial accident on 2/17/2009?” In Employer’s

view, the ALJ’s instruction did not allow the panel to consider the

issues of causation, diagnosis, andpast and future medical care. We

are not persuaded. Instead, we agree with the Commission that the

ALJ’s charge to the panel consisted of several components,

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including the identity of Claimant’s medical problems, the

likelihood that those problems were “a result of” the industrial

accident, and an assessment of the physical restrictions resulting

from those work-related injuries. (Internal quotation marks

omitted.) Similarly, we agree with the ALJ that it is difficult to

understand how the panel could perform its job without

addressing the physical restrictions and whether they were caused

by the injuries sustained in the industrial accident. Indeed,

Employer has not identified any statute or rule that the panel’s

analysis violated. Because the medical panel was responsive to the

various components of the ALJ’s charging order and because the

Commission was the ultimate factfinder, we conclude that the

Commission did not exceed its discretion in determining that the

causation and diagnosis of Claimant’s conditions were issues

properly before the medical panel.

II. Reasonable Medical Probability

¶16 Employer challenges the Commission’s conclusion that the

medical panel report was based on a reasonable medical

probability rather than on a medical possibility. In support of its

argument that the medical panel report is speculative and

uncertain, Employer points to the medical panel report’s use of the

words “may” and “possible” with regard to Claimant’s physical

conditions. Because this issue “does not lend itself to consistent

resolution by a uniform body of appellate precedent,” it is fact-like

and the Commission’s decision on the issue is entitled to deference.

See Jex v. Labor Comm’n, 2013 UT 40, ¶ 15, 306 P.3d 799 (citation and

internal quotation marks omitted).

¶17 Although Employer is correct that the medical panel report

uses the terms “may” and “possible” on occasion, the medical

panel begins its report of Claimant’s conditions with the

unequivocal statement that Claimant “has the following medical

conditions, as a direct result of the February 17, 2009 industrial

accident.” When the report is read as a whole, and in light of this

clear statement that Claimant “has the following medical

conditions,” it is evident that the medical panel’s opinion is based

on the panel’s assessment of medical probability. We therefore

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disagree with Employer that the Commission’s order should be set

aside.

III. The Medical Panel’s Examination

¶18 Employer claims that the Commission erroneously adopted

the medical panel report because the panel relied on statements

made during its examination of Claimant. When the panel

interviewed Claimant, Claimant’s family members helped him

answer questions and stated their observations of his symptoms.

Employer asserts that the medical panel should not have

considered these comments because they were outside the record.

Because the Commission is “in a superior position to decide” this

question, we defer to its determination. See id. (citation and internal

quotation marks omitted). 

¶19 The Utah Code allows a medical panel to “conduct a study,”

“take an x-ray,” or “perform a test.” Utah Code Ann. § 34A-2-

601(2)(a)(i)–(iii) (LexisNexis Supp. 2013). Accordingly, “a medical

panel may conduct its own medical examination and review of the

medical record.” Certified Bldg. Maint. v. Labor Comm’n, 2012 UT

App 240, ¶ 12, 285 P.3d 831. This court has therefore allowed

Commission decisions to stand where the medicalpanel conducted

its own examination and interview of the claimant. See, e.g., id.

¶¶ 12–13 (“[T]he medical panel was provided the medical record

and was permitted to conduct its own physical examination and

interview of [the claimant].”).

¶20 Employer’s argument that the medical panel improperly

considered extra-record evidence relies on Utah Code section 63G4-208, which provides that in formal adjudicative proceedings, the

presiding officer shall issue an order with “findings of fact based

exclusively on the evidence of record in the adjudicative

proceedings or on facts officially noted.” Utah Code Ann. § 63G-4-

208(1)(a) (LexisNexis 2011). If we assume, without deciding, that

section 63G-4-208 applies to a medical panel report, the report in

this case was based on “the evidence of record in the adjudicative

proceedings or on facts officially noted.” See id. (emphasis added).

The medical panel report expressly noted information that

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originated from statements made by Claimant’s family members

during the panel’s examination. In doing so, the medical panel

complied with the ALJ’s instruction that it include in its report any

“additional facts which are not contrary to the facts in the Findings

of Fact and Conclusions of Law contained in [her] Interim Order”

that the panel used in its examination and evaluation. Furthermore,

medical panels routinely obtain information from interviews with

claimants, see, e.g., Certified Bldg. Maint., 2012 UT App 240,

¶¶ 12–13, and Employer has not persuaded us that the medical

panel in this case impermissibly gathered a medical history that

conflicted with the ALJ’s interim findings.

¶21 Employer nonetheless asserts that the medical panel’s

consideration of the family members’ statements violated its

statutory right to cross-examine witnesses. In support, Employer

cites section 63G-4-206 of the Utah Administrative Procedures Act

(the UAPA). This section provides that “in all formal adjudicative

proceedings, a hearing shall be conducted” during whichallparties

are afforded “the opportunity to present evidence, argue, respond,

conduct cross-examination, and submit rebuttal evidence.” Utah

Code Ann. § 63G-4-206(1)(d) (LexisNexis 2011). Under the UAPA,

an “‘[a]djudicative proceeding’ means an agency action or

proceeding described in Section 63G-4-102.” Id. § 63G-4-103(1)(a).

Section 63G-4-102, in turn, does not say anything about a medical

panel’s examination. Id. § 63G-4-102 (LexisNexis Supp. 2013).

Employer relies on section 63G-4-206 for its claim that it was

entitled to cross-examine the family members, but by its plain

language, the section applies only to formal adjudicative

proceedings. Id. § 63G-4-206. Employer does not explain how a

medical panel’s examination of a claimant, conducted pursuant to

section 34A-2-601(2)(a), constitutes a formal adjudicative

proceeding during which an employer must be afforded an

opportunity to cross-examine all thosepresent.Employer therefore

has not convinced us that section 63G-4-206 requires the ALJ and

the Commission to afford parties the opportunity to cross-examine

individuals present at a medical panel’s examination of a claimant.

¶22 Employer also contends that the Commission violated its

right to constitutional due process by permitting the medical panel

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to solicit information from Claimant’s family members without

giving Employer an opportunityto cross-examine them. Employer,

however, has not demonstrated that it sufficiently preserved the

issue during the proceedings before the Commission.

¶23 “[T]he preservation rule applies to every claim, including

constitutional questions . . . .” State v. Holgate, 2000 UT 74, ¶ 11, 10

P.3d 346. “We do not review an unpreserved issue unless

exceptional circumstances are present orthe error was plain.” Utah

Chapter of Sierra Club v. Air Quality Bd., 2009 UT 76, ¶ 26, 226 P.3d

719. “[T]o preserve an issue for judicial review it must be raised in

a timely fashion before the agency, and be specifically raised with

supporting evidence or relevant legal authority.” Wintle-Butts v.

Career Serv. Review Office, 2013 UT App 187, ¶ 13 n.4, 307 P.3d 665

(citation and internal quotation marks omitted). “In short, a party

may not claim to have preserved an issue for appeal by merely

mentioning . . . an issue without introducing supporting evidence

or relevant legal authority.” Pratt v. Nelson, 2007 UT 41, ¶ 15, 164

P.3d 366 (omission in original) (citation and internal quotation

marks omitted). 

¶24 In its motion for review before the Commission, Employer

stated that “[a]ny medical orfactual information solicited from any

third party family member who attended the evaluation is in

violation of [Employer’s] right to state and federal due process and

violation of the Utah Administrative Procedures Act.” Although

Employer cited section 63G-4-206 as supporting authority for its

statutory right to cross-examine witnesses under the UAPA,

Employer failed to argue how its constitutional due process rights

were violated. As a result, the Commission did not have the

opportunity to address Employer’s constitutional argument.

Because Employer did not adequately preserve this issue before the

Commission, we decline to reach the merits of Employer’s

constitutional due process argument.

IV. Adequacy of the Interim Order

¶25 Next, Employer argues that the ALJ provided insufficient

findings of fact in her Interim Order. Specifically, Employer argues

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that the Interim Order “failed to identify for the panel those

conditions which were caused by the industrial accident” and that

this error prejudiced Employer because it caused the medical panel

to “stray[] beyond the Interim Order and erroneously mak[e] its

own factual findings regarding [the] issue[].”

¶26 In this case, the Interim Order did not contain findings as to

the nature of Claimant’s diagnoses, whether his various medical

problems were caused by his work accident, or what effect those

medical problems had on his ability to work. Employer argues that

these omissions render the ALJ’s Interim Order insufficiently

detailed. Employer, however, failed to preserve this argument

before the ALJ or the Commission. As discussed, an argument is

preserved for judicial review if it is has been “raised in a timely

fashion before the agency, and [has been] specifically raised with

supporting evidenceorrelevant legal authority.” Wintle-Butts, 2013

UT App 187, ¶ 13 n.4 (citation and internal quotation marks

omitted). In its reply memorandum in support of its objection to

the medical panel report, Employer stated, “Inthis case, the interim

order and charging instructions were insufficient to provide

guidance as to what conditions were causally related to the

industrial accident.” (Emphasis omitted.) Employer did not

support this claim with any relevant legal authority. Employer

made the same assertion, again without supporting legal authority,

in its reply to Claimant’s objection to the motion for review.

Employer therefore has not preserved this argument for judicial

review. 

¶27 But even if we were to consider this argument, we could not

agree with Employer that the medical panel strayed beyond the

Interim Order, because theALJ specifically asked the medical panel

to evaluate Claimant’s “permanent physical restrictions as a result

of injury from the industrial accident.” In other words, the medical

panel was instructed to make findings on “those conditions which

were caused by the industrial accident.” Any deficiency in the

ALJ’s factual findings would therefore be harmless. See Certified

Bldg. Maint. v. Labor Comm’n, 2012 UT App 240, ¶¶ 9–11, 285 P.3d

831 (employing the harmlessness standard when there was a claim

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that an ALJ’s interim findings were inadequate); Blair v. Labor

Comm’n, 2011 UT App 248, ¶ 16, 262 P.3d 456 (same). 

V. Substantial Evidence

¶28 Employer argues that the Commission erred in adoptingthe

medical panel’s report “when there was other substantial evidence

supporting a finding contrary to the medical panel’s [finding].” In

support, Employer cites Dr. Chung’s analysis and other evidence

it claims conflicts with the panel’s findings regarding Claimant’s

functional and medical capacity.

¶29 As we have explained, “[a]n administrative law judge may

base [his or her] finding and decision on the report of . . . a medical

panel.” Utah Code Ann. § 34A-2-601(2)(e)(i)(A) (LexisNexis Supp.

2013). Nevertheless, “an administrative law judge is not bound by

a report . . . if other substantial conflicting evidence in the case

supports a contrary finding.” Id. § 34A-2-601(2)(e)(ii). Employer

points to this language referring to “other substantial conflicting

evidence” and asserts that “other substantial conflicting evidence”

exists in this case that supports a finding contrary to the panel’s

finding. This “other substantial conflicting evidence,” Employer

contends, precluded the ALJ from admitting and considering the

medical panel report. 

¶30 The statutory language that an administrative law judge “is

not bound by a [medical panel] report . . . if other substantial

conflicting evidence . . . supports a contrary finding,” id., is more

pertinent to circumstances where the administrative law judge has

adopted a finding contrary to the medical panel report. See, e.g.,

Greyhound Lines, Inc. v. Wallace, 728 P.2d 1021, 1022–23 (Utah 1986)

(rejecting a plaintiff’s challenge to a finding where the Commission

chose to accept statements of one physician instead of the medical

panel report); Straub v. Labor Comm’n, 1999 UT App 192U, paras.

2–4 (refusing to grant relief where a petitioner argued that the

ALJ’s findings were contrary to those rendered by the medical

panel and that the ALJ was bound by the medical panel’s findings).

The presence of conflicting evidence does not negate the

administrative law judge’s discretion to base his or her findings on

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the medical panel report. See Utah Code Ann. § 34A-2-601(2)(e).

We agree with the Commission that the existence of conflicting

evidence is not “a sufficient reason to disregard a medical panel

report or exclude the report from the evidence.” This is especially

true in light of the fact that medical panels are used precisely

because there are conflicting medical opinions. See Utah Admin.

Code R602-2-2 (stating that a medical panel will be utilized by an

administrative law judge whena significant medical issue has been

shown by conflicting medical reports).

¶31 Employer’s argument that substantial evidence contradicts

the medical panel’s report boils down to an argument that “more

weight should have been given to the evidence in its favor.” See

Timpanogos Hosp. v. Labor Comm’n, 2011 UT App 106, ¶ 7, 251 P.3d

855. But this court may not reweigh the evidence because

“assigning such weights is the prerogative of the Commission.” Id.;

see also Migliaccio v. Labor Comm’n, 2013 UT App 51, ¶ 7, 298 P.3d

676 (“It is not the role of this court to reweigh the evidence and

substitute our conclusion for that of the Commission.” (citation

and internal quotation marks omitted)). Employer has failed to

demonstrate that the Commission’s findings are not supported by

substantial evidence. See Swift Transp. v. Labor Comm’n, 2014 UT

App 104, ¶ 8, 326 P.3d 678 (“We will not disturb the Commission’s

factual findings unless the party challenging the findings

demonstrates that a finding is not supported by substantial

evidence.”). Accordingly, we will not set aside the Commission’s

findings.

VI. Attorney Fees

¶32 As a final matter, Claimant requests an award of attorney

fees and costs incurred on appeal pursuant to rules 33 and 34 of the

Utah Rules of Appellate Procedure. Claimant asserts that

Employer’s petition for judicial review is frivolous and that he is

therefore entitled to attorney fees and costs.

¶33 Rule 33 provides that if an appellate court determines that

an appeal is “either frivolous or for delay, it shall award just

damages, which may include single or double costs, as defined in

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Rule 34, and/or reasonable attorney fees, to the prevailing party.”

Utah R. App. P. 33(a). A frivolous appeal is “one that is not

grounded in fact, not warranted by existing law, or not based on

a good faith argument to extend, modify, or reverse existing law.”

Id. R. 33(b). “But the imposition of such a sanction is a serious

matter and only to be used in egregious cases, lest the threat of

such sanctions should chill litigants’ rights to appeal lower court

decisions.” Redd v. Hill, 2013 UT 35, ¶ 28, 304 P.3d 861. “Sanctions

are appropriate [only] for appeals obviously without merit, with

no reasonable likelihood of success, and which result in the delay

of a proper judgment.” Id. (citation and internal quotation marks

omitted). Claimant has not demonstrated that this is an “egregious

case[],” and we therefore conclude that Claimant is not entitled to

an award of attorney fees. See id. However, we grant Claimant’s

request for costs incurred on appeal because we are not disturbing

the Commission’s order. See Utah R. App. P. 34(a) (“[I]f a judgment

or order is affirmed, costs shall be taxed against appellant unless

otherwise ordered . . . .”); see also id. R. 34(e) (“In all other matters

before the court, including appeals from an agency, costs may be

allowed as in cases on appeal from a trial court.”).

CONCLUSION

¶34 For the foregoing reasons, we allow the Commission’sorder

to stand.

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