Opinion
20220597-CA
12-29-2023
Nucor and Ace American Insurance Company, Petitioners, v. Labor Commission and Jay Norman Fonnesbeck, Respondents.
Mark R. Sumsion and Lori L. Hansen, Attorneys for Petitioners Marlin J. Grant, Attorney for Respondent Jay Norman Fonnesbeck
Original Proceeding in this Court
Mark R. Sumsion and Lori L. Hansen, Attorneys for Petitioners
Marlin J. Grant, Attorney for Respondent Jay Norman Fonnesbeck
Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.
OPINION
CHRISTIANSEN FORSTER, Judge
¶1 For more than twenty years, Nucor employed Jay Norman Fonnesbeck as a steel worker. During Fonnesbeck's employment, he developed arthritis, sleep apnea, and serious pulmonary and respiratory issues allegedly related to occupational exposure, as well as hernias following an alleged industrial accident in 2010.
¶2 Fonnesbeck sought workers' compensation benefits for the medical issues he asserts arose from occupational exposure during his time at Nucor and the industrial accident. Following a hearing, an administrative law judge (the ALJ) first referred the medical aspects of Fonnesbeck's claim to a medical panel to address medical causation, and later to a second, different medical panel after Fonnesbeck objected to the first panel's report. The ALJ adopted the findings of the second medical panel, concluded that Fonnesbeck had met his burden to prove medical causation, and awarded him partial benefits, a determination that was subsequently upheld by the Labor Commission (the Commission). Nucor petitioned for judicial review of the Commission's determination that sufficient grounds exist to support a rejection of the first medical panel's report and referral to a second medical panel.
¶3 As discussed below, we uphold the Commission's determination because there is a sufficient basis in the record to support that action. Accordingly, we decline to disturb the Commission's award of partial medical benefits related to Fonnesbeck's occupational exposure.
Here, we address each of the reasons the Commission put forth to support the rejection of the first panel report and appointment of a second panel. However, given the deference an appellate court owes to an administrative decision like this, we note that this court will likely decline to disturb a decision by the Commission to reject a medical panel report, as long as any one of the reasons for the rejection provided by the Commission establishes a reasonable basis for the decision.
BACKGROUND
¶4 Fonnesbeck worked for Nucor as a steel worker for twenty-one years, until December 2015. Due to alleged occupational exposure to lead and a host of other toxic metals during his employment, Fonnesbeck developed rheumatoid arthritis, pulmonary issues/interstitial lung disease, reactive airway disease, and obstructive sleep apnea. Also, in July 2010, while Fonnesbeck was working, he was struck by a mill stand while operating a crane. After the accident, Fonnesbeck was taken to the emergency room and diagnosed with left elbow contusion, right hip contusion, and hematuria. In 2017, some years after he left Nucor's employ, Fonnesbeck filed claims for medical benefits under the Utah Workers' Compensation Act and the Utah Occupational Disease Act, and his case proceeded to an evidentiary hearing before an ALJ.
¶5 Following the hearing, the ALJ referred the claim to a medical panel to address medical causation. The first medical panel (the first panel) consisted of two physicians-an occupational medicine doctor and a general surgeon. The first panel reviewed nearly 1,000 pages of medical records and Fonnesbeck's imaging studies, but due to the pandemic, the first panel did not interview or personally examine Fonnesbeck. At no time during the first panel's evaluation did the ALJ submit questions or request information from the panel members about their qualifications. During its review and evaluation, the chair of the first panel notified the ALJ that the panel "may or may not need to get another specialist."
We recognize and appreciate that the first panel conducted its examination process during the COVID-19 pandemic; however, the first panel did have the option to conduct a virtual interview or examination of Fonnesbeck and chose not to do so. The second panel conducted a virtual interview.
¶6 The first panel's report concluded that Fonnesbeck's ailments were not causally linked to his alleged occupational exposure or his industrial accident. Fonnesbeck objected to the first panel's report based on the first panel's allegedly deficient credentials under Foye v. Labor Commission, 2018 UT App 124, 428 P.3d 26, abrogated on other grounds by Gamez v. Utah Labor Commission, 2022 UT 20, 511 P.3d 1145, the failure of the first panel to conduct any in-person or virtual examination, and the first panel's failure to answer all questions posed by the ALJ, some of which concerned Fonnesbeck's current ability to sit, stand, walk, kneel, climb stairs, and bend/stoop.
Under this standard, all medical panel members were required to be specialists. See Foye v. Labor Comm'n, 2018 UT App 124, ¶ 22, 428 P.3d ("[T]he statute's plain language requires that the panel consist of physicians who specialize in 'treatment of the disease or condition' at issue in the case." (quoting Utah Code § 34A-2-601(1)(c)), abrogated on other grounds by Gamez v. Utah Labor Comm'n, 2022 UT 20, 511 P.3d 1145.
¶7 Nucor responded to Fonnesbeck's objection, pointing out that the first panel included an occupational medicine specialist who had extensive experience in toxicology and a general surgeon familiar with hernias. Fonnesbeck replied, asserting that the first panel lacked a pulmonology specialist necessary to assess the cause of his exposure injuries. Based on Fonnesbeck's objection- but without asking the first panel to report its members' qualifications, address the lack of an examination, or explain why it did not answer all questions-the ALJ excluded the first panel's report and referred the matter to a second medical panel (the second panel) to address causality. Specifically, the ALJ stated in her order:
After careful review, the Court has determined that the panel should have conducted at minimum a virtual medical examination, it does not appear that the medical panel had the requisite specialists as required by Foye[,] and the panel failed to address the Court's questions.
Since assigning this matter to [the chair of the first panel], he has represented to the Court that he is currently not conducting any in-person or virtual medical examinations. The Court finds that there are deficiencies that prevent the report from being admitted into the evidentiary record. Consequently,
the Court will appoint a new panel to address the medical issues in this matter.
¶8 In February 2021, the second panel produced its report, which differed from the first panel's report in the causality findings. The second panel's evaluative approach was also different, i.e., the second panel consisted of an occupational medicine specialist, a medical toxicologist, and a general surgeon; the second panel conducted a virtual examination of Fonnesbeck when the first panel refused to do so; and the second panel answered more, but still not all, of the ALJ's questions (some questions were deemed inapplicable per the instructions to both panels). The second panel determined that while Fonnesbeck's hernias were not industrially related, 45% of his rheumatoid arthritis, pulmonary issues/interstitial lung disease, reactive airway disease, and obstructive sleep apnea were caused by his occupational exposure, and it recommended that Fonnesbeck be awarded partial benefits.
¶9 Both Fonnesbeck and Nucor initially objected to the second panel's report, though for different reasons. The parties argued back and forth about why the second panel's report was faulty. The ALJ supplied the parties with the amended panel report and advised them of their right to object.
¶10 The ALJ subsequently issued Findings of Fact, Conclusions of Law, and an Order to Pay Subsistence Benefits, adopting the conclusions of the second panel over Nucor's objections. Consistent with the second panel's findings and recommendation, the ALJ determined that Fonnesbeck had met his burden to prove medical causation related to his occupational exposure injuries and awarded him partial benefits. In the ALJ's final order, she addressed the various objections to the first panel:
[T]he Court issued an Order rejecting the [first] medical panel report on the basis that the panel did not conduct[,] at a minimum[,] a virtual medical
examination. Further, it did not appear that the medical panel had the requisite specialists as required by Foye[,] and the [first] panel failed to address the Court's questions. Lastly, the Court was unable to refer the matter back to [the chair of the first panel] because he had informed the Court that he was not conducting any in-person or virtual medical examinations.
¶11 Nucor asked the Commission to review the ALJ's partial award of benefits, and Fonnesbeck filed a separate motion for review.
¶12 The Commission agreed with the ALJ's decision to reject the first panel's report and refer the matter to the second panel:
The [second] medical panel included experts in toxicology and surgical treatment of traumatic injuries. The [second] panel also virtually examined Mr. Fonnesbeck via videoconference and produced reports that sufficiently answered the questions posed to the panel. The [second] panel determined that the 2010 work accident resulted in abrasions and contusions, but did not medically cause or worsen Mr. Fonnesbeck's hernias or any internal injury. The [second] panel opined that Mr. Fonnesbeck's occupational exposure medically caused or worsened his rheumatoid arthritis with interstitial lung disease, reactive airway disease and obstructive sleep apnea. The [second] panel also outlined Mr. Fonnesbeck's necessary medical care and his functional limitations.
¶13 The Commission reasoned,
The courts have recognized that referral to a medical panel is helpful in considering the medical
complexities of workers' compensation cases. The Commission concurs with [the ALJ's] decision to refer the medical aspects of Mr. Fonnesbeck's claim to a medical panel. . . . The Commission . . . agrees with [the ALJ] that [the first panel] did not only decline to answer questions because they were inapplicable. . . . [T]he first panel [also] failed to offer any analysis or answer regarding the factors that did cause [Fonnesbeck's] conditions. . . . These differences, and the fact that the first medical panel refused to meet with Mr. Fonnesbeck even virtually by videoconference, are sufficient grounds for [the ALJ] to reject the first panel's report and refer the medical aspects of the claim to the new panel.
The Commission was "not convinced" that it "was improper for [the ALJ] to reject the first panel's report and refer the medical issues of this case to the [second] medical panel." Because the Commission concurred (1) with the ALJ's conclusions regarding the medical cause of Fonnesbeck's conditions, "including the worsening of his respiratory problems, obstructive sleep apnea, and rheumatoid arthritis, due, in part, to his occupational exposure at Nucor," and (2) with the ALJ's determination that Fonnesbeck had not established "a medical causal connection between his hernias and the 2010 work accident," the Commission agreed with the ALJ's conclusions regarding the medical cause of Fonnesbeck's respiratory conditions. Nucor now seeks judicial review of the Commission's determination.
ISSUE AND STANDARD OF REVIEW
¶14 Nucor challenges the Commission's decision to uphold the ALJ's decision to "reject the first panel's report and refer the medical issues of this case to the new medical panel." The issue before us is whether the record sufficiently supports the Commission's decision.
¶15 "We generally review the Commission's decisions regarding appointment of medical panels for abuse of discretion, based on instructive language in the relevant statute." Graphic Packaging Int'l Inc. v. Labor Comm'n, 2021 UT App 82, ¶ 21, 495 P.3d 228; see also BASF Corp. v. Labor Comm'n, 2023 UT App 108, ¶ 23, 537 P.3d 291. Notably, "the governing statute provides that the Commission may refer the medical aspects of any case involving a claim for disability by accident to a medical panel appointed by an ALJ. The statute's use of the word may is significant" and "suggests that the legislature has granted the Commission discretionary power over the appointment of medical panels." Graphic Packaging, 2021 UT App 82, ¶ 21 (quotation simplified) (emphasis added). "[A] discretionary decision involves a question with a range of 'acceptable' answers, some better than others, and the agency . . . is free to choose from among this range without regard to what an appellate court thinks is the 'best' answer." Murray v. Utah Labor Comm'n, 2013 UT 38, ¶ 30, 308 P.3d 461. When applying this standard, "we will reverse only if there is no reasonable basis for the decision." Graphic Packaging, 2021 UT App 82, ¶ 21 (quotation simplified).
ANALYSIS
I. Medical Panel Specialist Requirements
¶16 Section 34A-2-601(1)(c) of the Utah Code states that "[a] medical panel appointed under this section shall consist of one or more physicians specializing in the treatment of the disease or condition involved in the claim." The current interpretation of this provision under Gamez v. Utah Labor Commission, 2022 UT 20, 511 P.3d 1145, no longer requires that all panel members be specialists, as was previously required under Foye v. Labor Commission, 2018 UT App 124, 428 P.3d 26, abrogated on other grounds by Gamez, 2022 UT 20.
¶17 However, the Utah Supreme Court's decision in Gamez was not issued until after the ALJ convened both the first panel (2020) and the second panel (2021), when the Foye standard was still applicable. Under Foye, a medical panel was required to "consist of physicians who specialize in the treatment of the disease or condition at issue" in Fonnesbeck's case. See 2018 UT App 124, ¶ 22 (quotation simplified). But as is clear from the record, the first panel consisted of only two panelists: an occupational disease specialist and a general surgeon. Therefore, the Commission acted within its discretion to uphold the ALJ's rejection of the first panel's report and appointment of the second panel to address Fonnesbeck's medical issues. We agree with the Commission that under section 34A-2-601(1)(c) and Foye, for the first panel to accurately assess Fonnesbeck's conditions-including chronic lung, muscular, and sleep-related issues he alleged stemmed from occupational exposure to various toxins at the steel mill, and a hernia he alleged resulted from a documented workplace accident-the first panel would have needed to add additional specialists to its panel; i.e., "it does not appear that the [first] medical panel had the requisite specialists as required by Foye." In fact, as mentioned, the first panel even acknowledged to the ALJ that it might need other specialists. When the second panel convened, its panelists consisted of an occupational medicine specialist, a general surgeon, and a toxicologist, a composition that further supports the ALJ's determination that the first panel did not have the requisite specialists required under the law.
¶18 The Commission agreed with the ALJ's decision to convene a second panel, noting that "[t]he new medical panel included experts in toxicology and surgical treatment of traumatic injuries." Based on the evidence set forth in the record, we determine that the Commission did not abuse its discretion when it agreed with the ALJ, as the ALJ had extensive discretion to determine whether the first panel's qualifications were or were not sufficient under Foye. This reason alone-the first panel's insufficient qualifications-establishes a reasonable basis in the record for the Commission to sanction the appointment of the second panel.
II. Virtual or In-Person Examination
¶19 As discussed, the Commission has the discretion to appoint more than one medical panel. See Graphic Packaging Int'l Inc. v. Labor Comm'n, 2021 UT App 82, ¶ 24, 495 P.3d 228 ("[T]he best reading of [section 34A-2-601(1)(a) of the Utah Code], and the one that harmonizes the entire subsection, is the one giving the Commission discretion regarding medical panel appointments, including the discretion to decline to appoint one, as well as the discretion to appoint more than one panel if necessary.").
¶20 The ALJ posed a number of questions to the first panel regarding Fonnesbeck's current ability to sit, stand, walk, kneel, climb stairs, and bend/stoop. Answering these questions required a current virtual or in-person examination of Fonnesbeck. Yet the first panel failed to conduct any examination of Fonnesbeck and simply declined to respond to these questions in its report. And while in-person examinations were complicated by the COVID-19 pandemic, notice was sent to the parties indicating that ALJs retained discretion to require employees to submit to a medical examination under section 34A-2-602(1) of the Utah Code, and that medical panel examinations would be performed virtually during the COVID-19 pandemic.
¶21 Despite this discretionary authority, the first panel refused to conduct any sort of interview or examination of Fonnesbeck: "A video or audio evaluation would not alter our opinions in this case . . . ." In contrast, the second panel conducted a virtual evaluation of Fonnesbeck and was able to answer the ALJ's questions concerning Fonnesbeck's current physical limitations: the second panel "virtually examined Mr. Fonnesbeck via videoconference and produced reports that sufficiently answered the questions posed to the panel." This reason alone-the complete lack of exam due to the first panel's refusal to conduct one-establishes a reasonable basis in the record for the Commission to sanction the appointment of the second panel.
¶22 Based on the record before us, we conclude that the Commission did not abuse its discretion when it upheld the ALJ's decision to refer the matter to the second panel.
CONCLUSION
¶23 We agree with the Commission that the ALJ did not abuse her discretion in concluding that the first panel should have included another specialist to be compliant under the then-controlling precedent of Foye. In addition, the first panel did not conduct any examination of Fonnesbeck and indicated it would not do so, which resulted in the panel's failure to answer all the submitted questions, and its failure to offer any analysis regarding the factors that did cause Fonnesbeck's conditions. These reasons, when considered separately or together, establish a reasonable basis in the record for the Commission to sanction the appointment of the second panel.
¶24 Nucor has not persuaded us that the Commission abused its discretion. Accordingly, we decline to disturb the Commission's decision.