TIMOTHY FOYE, Petitioner, v. LABOR COMMISSION, KODIAK FRESH PRODUCE, AND EMPLOYERS ASSURANCE COMPANY, Respondents.
No. 20161039-CA
THE UTAH COURT OF APPEALS
Filed June 21, 2018
2018 UT App 124
POHLMAN, Judge
Original Proceeding in this Court
Aaron J. Prisbrey and Trevor C. Sanders, Attorneys for Petitioner
Ford G. Scalley and Alisha M. Giles, Attorneys for Respondents Kodiak Fresh Produce and Employers Assurance Company
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.
POHLMAN,
¶1 Timothy Foye asks us to review the Labor Commission‘s decision denying his claim for benefits under
BACKGROUND
¶2 In May 2014, Foye sought compensation benefits related to a work accident that occurred in October 2013 while he was employed with Kodiak Fresh Produce (Kodiak) as a commercial truck driver. He alleged that he was exposed to “high levels of carbon monoxide” due to a carbon monoxide leak from his truck‘s engine while he sat in the truck‘s cab for approximately four hours, waiting for a blizzard to pass. He claimed that as a result of the carbon monoxide exposure, he sustained permanent brain damage, resulting in “headaches, balance, vision & hearing problems, depression, anxiety, [and] problems concentrating.”
¶3 A number of Foye‘s treating physicians diagnosed him with carbon monoxide poisoning. One of his physicians, an expert in hyperbaric medicine, opined that Foye suffered brain damage from the carbon monoxide exposure and predicted that the effects of the exposure “will affect him his entire life.” Another of his treating physicians, however, opined that it was unlikely the exposure caused his symptoms and that Foye needed to see a psychiatrist to resolve his symptoms.
¶4 During the course of the proceedings, Kodiak required Foye to submit to two examinations with physicians it chose. One of the physicians, a neurologist, believed that Foye‘s presentation was within the neuropsychological, not the neurological, realm of medicine; the other physician, a neuropsychologist, opined that the exposure was not “a probable cause or contribution” to the neuropsychological complaints Foye presented.
¶5 After an evidentiary hearing, the Administrative Law Judge (the ALJ) determined that there were “conflicting medical opinions as to whether [Foye‘s] current condition . . . [was] causally related to his work accident.” The ALJ therefore referred Foye‘s case to a medical panel. In her findings, the ALJ specifically identified the conditions involved in the claim: carbon monoxide poisoning, and/or Foye‘s potentially preexisting condition, which “may be pseudo-dementia.” She requested the panel to, among other things, opine on whether Foye had a preexisting condition and, if so, whether the industrial accident aggravated, accelerated, or made symptomatic that preexisting condition.
¶7 The medical panel reviewed Foye‘s medical records and, in its report, extensively recited his medical history as well as his current complaints. The panel ultimately concluded that Foye did not suffer permanent neurological injuries from the carbon monoxide exposure. Rather, it concluded that any “temporary discomfort” Foye experienced from the exposure “would have resolved within a few hours,” and that he was “medically stable with regards to his industrial exposure by the time of his discharge from the emergency department” on the date of the accident. The panel also concluded that Foye had “experienced most of his current symptoms prior to the industrial accident” and that “the change in symptoms is more likely than not a progression of his inadequately treated psychiatric disease, rather than a manifestation of a delayed neurologic syndrome from a possible carbon monoxide exposure.” As a result, the panel opined that the work accident caused no permanent impairment, that no medical care was currently necessary to treat the work condition, and that a permanent total disability was not established.
¶8 Foye objected to the medical panel report. He argued that the panel was not competent to conduct the evaluation, especially where neither of the panelists had expertise in offering psychiatric diagnoses, and he asserted that it failed to adequately address the carbon monoxide exposure issue or evidence. He also argued that his treating physicians were more competent than the panel, and he provided rebuttal letters from two of his treating physicians, each of whom disagreed with the panel‘s assessment. Dr. Weaver in particular disagreed with the panel‘s conclusion that Foye had not suffered permanent brain damage as a result of the exposure, and he contended that “the medical panel has a superficial understanding of carbon monoxide poisoning and its long-term impact.” Foye requested a hearing to address his concerns.
¶9 Rather than hold a hearing to resolve Foye‘s objection, the ALJ sent the objection directly to the panel and requested that it report whether the objection changed its opinion. The panel responded that, after reevaluation, its conclusions “remain[ed] unchanged.” In reaffirming its opinion, the panel addressed many of the comments raised as part of Foye‘s objection, but it did not specifically address his objection to the panel‘s competency to render an opinion in his case. Rather, the panel stated that it “did not offer a psychiatric diagnosis” but instead merely referred to Foye‘s medical records documenting pre-accident diagnoses, and that it only “rendered a neurological opinion . . . based on the evidence presented in [Foye‘s] medical record and his interview and neurological examination by the medical panel.”
¶10 Foye objected to the medical panel‘s second report, again contending that the panel was not “competent to render an opinion” in his case. He asserted that “there is no evidence the panel doctors have ever treated anyone for carbon monoxide poisoning.” And he noted that in the panel‘s second report there was no attempt to challenge the assertion that the panel lacked competence to opine on his condition.
¶11 In her Findings of Fact, Conclusions of Law, and Order, the ALJ concluded that “the weight of the evidence” did not support Foye‘s assertion that the accident medically caused his ongoing symptoms, and she rejected his claim. The ALJ also determined that Foye‘s objections to the medical panel report were not well-taken, and the ALJ admitted the report into the record. In particular, the ALJ found the panel to be “qualified to review and consider the medical evidence and opinions in this case,” that the panel‘s evaluation was “well thought out” and
¶12 Foye filed a motion for review with the Board. In that motion, he largely repeated the arguments he made in his objections to the medical panel reports. Among other things, he argued that his treating physicians’ opinions were superior to those of the medical panel, and that it lacked the knowledge and skill to opine on his carbon monoxide poisoning.
¶13 The Board affirmed the ALJ‘s decision, adopting the ALJ‘s findings of fact and making additional findings of fact material to the motion for review. In regard to Foye‘s argument that the panel was not competent, the Board found that the panel “consisted of experts in occupational medicine and neurology, who are qualified to address the issue of medical causation as it pertains to [Foye‘s] neurological and cognitive impairments.” The Board also found the medical panel‘s conclusions “persuasive on the issue of medical causation” and agreed with the ALJ that Foye had not established that the work accident was the medical cause of his current condition.
¶14 Foye filed a motion to reconsider with the Board. He argued for the first time that the opinions of Kodiak‘s medical examiners were “unconstitutionally obtained” through an impermissible delegation of legislative authority by the Commission to private third parties, such as insurance companies. On this basis, he contended that he was prejudiced by Kodiak‘s medical examiner reports because the Board relied on those reports to support the dismissal of his claim. The Board rejected Foye‘s non-delegation argument on its merits and denied Foye‘s request for reconsideration.
¶15 Foye now seeks judicial review.
ISSUES AND STANDARDS OF REVIEW
¶16 Foye argues that the Board abused its discretion by refusing to sustain his objection to the medical panelists’ expertise and exclude the medical panel report on that basis. “We review the [Board‘s] refusal to exclude a medical panel report [on the basis of an objection] under an abuse of discretion standard, providing relief only if a reasonable basis for that decision is not apparent from the record.” Bade-Brown v. Labor Comm‘n, 2016 UT App 65, ¶ 8, 372 P.3d 44 (quotation simplified). In so doing, we will defer to the Board‘s factual findings about the issue so long as those findings are supported by substantial evidence. See Danny‘s Drywall v. Labor Comm‘n, 2014 UT App 277, ¶ 11, 339 P.3d 624. “Substantial evidence is more than a mere scintilla of evidence though something less than the weight of the evidence, and the substantial evidence test is met when a reasonable mind might accept as adequate the evidence supporting the decision.” Hutchings v. Labor Comm‘n, 2016 UT App 160, ¶ 30, 378 P.3d 1273 (quotation simplified).2
¶17 Foye also argues that the medical examinations by Kodiak‘s physicians of choice were obtained as a result of the Commission‘s unconstitutional delegation of legislative authority to Kodiak through its own rule. This is a question of law, and we review the agency‘s resolution of the question for correctness. See Conley v. Department of Health, 2012 UT App 274, ¶ 7, 287 P.3d 452.
I. The Medical Panel
¶18 Foye argues that the Board exceeded its discretion by admitting the medical panel report and dismissing his claim for permanent total disability benefits where it “fail[ed] to appoint a medical panel which is competent in the medical field of carbon monoxide poisoning or neuropsychological diagnoses, in violation of Utah statute.” He contends that there is no evidence that either medical panelist specialized in the treatment of the conditions at issue in his case—either carbon monoxide poisoning or preexisting neuropsychological conditions, such as pseudo-dementia—as required by Utah Code section
¶19 Foye‘s argument requires us to evaluate whether the Board exceeded its discretion in its resolution of his objection and by ultimately admitting the medical panel report.
A. The Appointment of Medical Panels
¶20
¶21 If a medical panel is appointed,
¶22 Thus, the statute‘s plain language requires that the panel consist of physicians who specialize in the “treatment of the disease or condition” at issue in the case. See
¶23 Once a medical panel report is completed, an administrative law judge and the Board have discretion to adopt or reject it on the basis of the evidence developed in the case. See
¶24 However, if a written objection is made to a medical panel report, “the administrative law judge may set the case for hearing to determine the facts and issues involved.”
B. Foye‘s Objections to the Medical Panel Report
¶25 Foye asserts on judicial review that the Board exceeded its discretion in affirming admission of the medical panel report where, despite the panel‘s opportunity to provide supportive evidence, no evidence exists to suggest that either panelist was qualified under
¶26 As discussed above, we will sustain the Board‘s resolution of a petitioner‘s objection so long as there is a reasonable basis for that resolution in the record. See,
¶27 In her initial interim findings, the ALJ identified the relevant disease or condition involved in the claim as “carbon monoxide poisoning” or a preexisting condition that “may be pseudo-dementia.” In addressing Foye‘s objection to the medical panel report, the ALJ found the panelists qualified to address these conditions based upon a Commission directory that apparently identified Dr. Biggs, a family medicine physician, as having experience treating carbon monoxide poisoning, and also based upon the fact that Dr. Watkins is a board certified neurologist. The directory is not part of the record.
¶28 On review of the ALJ‘s decision, the Board found the panelists qualified only after over-generalizing the conditions at issue. Rather than finding that the panelists were qualified to render an opinion based on their specialties in treating the identified conditions involved in the claim—carbon monoxide poisoning and/or preexisting pseudo-dementia—the Board determined that the panelists were “experts in occupational medicine and neurology, who are qualified to address the issue of medical causation as it pertains to [Foye‘s] neurological and cognitive impairments.”
¶29 While we would ordinarily defer to the Board‘s findings on this issue, we cannot do so where there is no evidence in the record to support them. See Danny‘s Drywall, 2014 UT App 277, ¶ 11. Foye‘s objection put the panelists’ qualifications to render an opinion directly at issue. But neither the ALJ nor the Board identified evidence that supported a conclusion that the panelists were specialists in treating carbon monoxide poisoning or pseudo-dementia. The directory the ALJ referred to as evidence that Dr. Biggs had experience with carbon monoxide poisoning was not included in the record,3 and the panelists did not, in response to Foye‘s objection, provide evidence of their qualifications upon which the ALJ and the Board could rely. Further, the Board merely identified both physicians’ general practice expertise as apparently sufficient. Thus, no record evidence supports the Board‘s determination that either panelist specialized in treating carbon monoxide poisoning or Foye‘s potentially preexisting
pseudo-dementia. See
¶30 Accordingly, we cannot conclude that the ALJ and the Board had an evidentiary basis to find the panelists were in fact qualified and, on that basis, overrule Foye‘s objection. See Bade-Brown, 2016 UT App 65, ¶ 8 (explaining that we will provide relief from the Board‘s refusal to exclude a medical panel report on the basis of an objection “if a reasonable basis for that decision is not apparent from the record” (quotation simplified)). Rather, in these circumstances—where the petitioner objected to the panelists’ qualifications but no evidence was provided or adduced to rebut the objections—the objections were well-taken, and the medical panel reports should have been excluded. See Johnston v. Labor Comm‘n, 2013 UT App 179, ¶¶ 29–31, 307 P.3d 615 (explaining that a reviewing court should consider whether a petitioner‘s objection to a medical panel report is well-taken by looking to the deficiencies alleged and the record supporting the validity of the panel report). The Board therefore exceeded its discretion in admitting the panel report over Foye‘s objections to the panelists’ qualifications. See id.
C. Substantial Prejudice
¶31 We also conclude that Foye was substantially prejudiced by the Board‘s admission of and subsequent reliance on the medical panel report over his objections to the panelists’ expertise. See
¶32 The statute‘s plain language, requiring the panelists to be physicians specializing in treating the condition involved in the claim, indicates that a particular physician‘s qualifications vis-à-vis a particular claimed disease or condition matter; the obvious implication is that not every physician will be qualified to sit on a particular medical panel and render an opinion. See
¶33 In this case, the issue of medical causation was disputed, and the medical panel was enlisted to assist the ALJ (and, later, the Board) in resolving this dispute and in making the medical causation determination. But there was no evidence that the panelists were qualified to render the medical causation opinions about the conditions at issue. Nevertheless, the ALJ admitted the medical panel report into evidence, which the Board affirmed. And, importantly, it is apparent from their respective decisions that the ALJ and the Board relied heavily upon the medical panel‘s medical causation conclusions to resolve the medical causation dispute and ultimately dismiss Foye‘s claim. Although the ALJ noted some medical opinion evidence apart from the panel‘s report regarding medical causation, she ultimately determined that the panel‘s report was a “well thought out” and “logical evaluation” that persuaded her that Foye had not demonstrated his current condition was medically caused by the work accident. The Board, in affirming the ALJ‘s decision, likewise found “the medical panel‘s conclusions to be persuasive on the issue of medical causation” and added that the panel‘s conclusions were “the product of . . . expert review.”
¶34 In sum, the medical panel‘s apparent lack of requisite expertise is a fundamental defect and undermines the ALJ‘s and the Board‘s reliance on the panel‘s medical causation opinions and conclusions: the panelists were not duly qualified to assess the conditions involved in the claim as required under section
¶35 We therefore set aside the dismissal of Foye‘s claim for permanent total disability on the basis of the industrial accident in October 2013. We instruct the Commission to appoint another medical panel, with qualified panelists to assess the medical causation issue, and to then consider the issue of medical causation as it relates to Foye‘s claim.
II. Foye‘s Other Claims
¶36 Foye has asserted one other primary claim on judicial review.4 Foye contends
rule
¶37 In particular, Foye argues that rule
(...continued) considerations. Because we are instructing the Commission to convene a new medical panel to address the question of medical causation, we need not consider these issues.
the exercise of discretion” or oversight over the conditions related to a respondent‘s entitlement to medical examinations from the Commission entirely. In making this argument, Foye relies heavily on our supreme court‘s decision in Revne v. Trade Commission, 192 P.2d 563 (Utah 1948), arguing that the circumstances in that case—where our supreme court struck down certain regulations as unconstitutional delegations of legislative power—are similar to those present in his case.
¶38 We are not persuaded. Although Foye claims that the rule essentially places the employer on the same level with the Commission and that the Commission, in promulgating the rule, has effectively surrendered all of its necessary oversight discretion to private parties, Foye has not demonstrated how this is so. While rule
¶39 In this regard, we agree with the Board that the case Foye primarily relies on in making his argument is inapposite. In Revne, our supreme court held that the Utah State Barber Board improperly delegated its legislative authority to the class of barbers. Id. at 568. In that case, the Board promulgated regulations that essentially conferred upon a 70% majority of barbers in an area the sole authority to initiate changes in prices or opening and closing hours for barber shops in a given area; under the regulations, the Barber Board was left with no power “to act for the public upon its own initiative.” Id. In concluding the regulations were unconstitutional, the supreme court was especially troubled that, although the law was “passed to protect the public health and safety” and the Barber Board theoretically stood between the public and the 70% of the barbers required to agree upon and initiate changes to prices and hours, the Barber Board‘s lack of initiative authority subjected
¶40 Furthermore, to the extent Foye is arguing that rule
¶41 Accordingly, we are not persuaded that rule
CONCLUSION
¶42 We conclude that the Board exceeded its discretion when it found that the medical panelists were qualified to render a medical opinion in this case and on that basis overruled Foye‘s objection to the medical panel reports. We therefore set aside the Board‘s dismissal of Foye‘s claim for permanent total disability and instruct the Commission to appoint a new medical panel to evaluate the issue of medical causation. Because we set aside the Board‘s dismissal, we decline to address Foye‘s overall claim that the Commission engaged in an unlawful decision-making process. We nevertheless reject Foye‘s claim that the Commission‘s rule