Barker v. Labor Commission, 528 P.3d 1260

Dirk W. Barker worked for Burrell Mining Products from 1991–2016 and was routinely exposed to welding fumes, fly ash, cement, and foam concentrate; he was also a longtime smoker with secondhand smoke exposure.
In 2017 he was diagnosed with severe, progressive COPD and emphysema that the medical panel found "caused or aggravated" by his employment and which rendered him permanently and totally disabled.
A medical panel attributed 25% of his disease to occupational exposure and 75% to smoking; the ALJ found total disability but reduced benefits to 25% (apportionment).
Barker sought to audio/video record the insurer’s Rule 35 examination; the ALJ ordered the exam without permitting video recording (audio was recorded by both sides).
The Appeals Board (2–1) upheld the ALJ’s apportionment; the Utah Court of Appeals held the ALJ erred on the recording issue and that apportionment was inappropriate under the facts, and remanded for full permanent total disability benefits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to record insurer's medical exam	Barker: Utah R. Civ. P. 35 permits audio or video recording unless it would unduly interfere	Burrell: Labor Commission rule allowing insurer exams supersedes Rule 35; silence means no recording	Rule 35 applies to administrative discovery where not preempted; ALJ erred in denying video recording
Burden of proof for apportionment	Barker: employer bears burden to show apportionment is appropriate	Burrell: employee must prove apportionment statute does not apply	Employer (proponent of reduction) bears the burden of proving apportionment
Whether statute permits apportionment where one disease has both industrial and non‑industrial causes	Barker: statute applies only when multiple diseases (or multiple causes of disability) exist; cannot apportion causes of a single disease	Burrell: apportionment may be applied to causes (e.g., smoking) of a single disease	Subsections (3) and (4) require multiple diseases/causes of disability; subsections (1)–(2) may reach single‑disease multi‑cause scenarios but are factually inapplicable here (no non‑Utah employer; COPD not a disease "of a character" commonly encountered by public); apportionment was inappropriate; award must be for full benefits

Salt Lake City v. Newman, 148 P.3d 931 (Utah 2006) (silence in a statute or rule does not imply a conflict that preempts another rule)
McNair v. State, 328 P.3d 874 (Utah Ct. App. 2014) (rule silence does not automatically preempt other procedural rules)
Reedeker v. Salisbury, 952 P.2d 577 (Utah Ct. App. 1998) (statutory silence does not preclude applicability of other statutes)
Cowin & Co. v. Medina, 860 P.2d 535 (Colo. App. 1992) (apportionment is an exception to compensability; burden should be on employer)
Deschenes v. Transco, Inc., 953 A.2d 13 (Conn. 2008) (apportionment applies where separate diseases combine to cause disability, not to apportion causes of a single disease)
Fry’s Food Stores v. Industrial Comm’n, 866 P.2d 1350 (Ariz. 1994) (distinguishing apportionment of disabilities from apportionment of causes of a single disease)
Burton v. Rockwell Int’l, 967 P.2d 290 (Kan. 1998) (similar holding that apportionment statutes do not require apportioning causes of a single disease)
Koesling v. Basamakis, 539 P.2d 1043 (Utah 1975) (proponent of a proposition bears the burden of proof)