Gamez v. Labor Commission , 2022 UT 20 ( 2022 )

2022 UT 20IN THE
SUPREME COURT OF THE STATE OF UTAH
LUIS G. GAMEZ,
Petitioner,
v.
UTAH LABOR COMMISSION, B & S
CONSTRUCTION, and WORKERS
COMPENSATION FUND,1
Respondents.
No. 20200625
Heard September 17, 2021
Filed May 26, 2022
On Certification from the Court of Appeals
Attorneys:
Virginius Dabney, St. George, Stony V. Olsen, Moroni,
for petitioner
Floyd W. Holm, St. George, for respondents B & S Construction
and Workers Compensation Fund
Christopher C. Hill, Salt Lake City, for respondent
Utah Labor Commission
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE
HIMONAS, and JUSTICE PEARCE joined.
JUSTICE HAGEN became a member of the Court on May 18, 2022,
after oral argument in this matter, and accordingly did not
participate.
__________________________________________________________
1 Workers Compensation Fund is now known as WCF Mutual
Insurance Company.

Justice Himonas sat on this case and voted prior to his
retirement on March 1, 2022.
GAMEZ v. LABOR COMMISSION
Opinion of the Court
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Luis G. Gamez2 sought workers‘ compensation benefits
after he injured his left shoulder and low back in an industrial
accident. Gamez‘s employer and its workers‘ compensation
carrier accepted liability for Gamez‘s left-shoulder injury, but
contested the compensability of his low-back injury. The
administrative law judge (ALJ) assigned to the case appointed a
medical panel to resolve the dispute. She appointed Dr. Jeremy
Biggs, a board-certified occupational medicine physician, to serve
as the panel chair. As chair, Dr. Biggs selected an orthopedic
specialist to serve with him on the panel.
¶2 Gamez objected to the ALJ‘s appointment of Dr. Biggs
and moved for interlocutory review of this decision. He argued
that Dr. Biggs should be disqualified because he had a conflict of
interest and because he did not specialize in low-back conditions.
The Labor Commission Appeals Board (the Board) rejected
Gamez‘s objections. It determined that Gamez had not made the
requisite showing that Dr. Biggs had an ―actual bias.‖ And it
concluded that Dr. Biggs could properly serve on the panel even if
he was not a specialist because a medical panel need have only
one member who specializes in the condition at issue, and that
requirement was satisfied by the orthopedic specialist.
¶3 Ultimately, the medical panel concluded that the accident
had temporarily aggravated Gamez‘s low back but had not
caused permanent injury. The ALJ accepted the panel‘s
conclusions. And the Board affirmed the ALJ‘s decision.
¶4 Gamez petitioned for review in the court of appeals,
which certified the matter to us. Gamez argues that Dr. Biggs
should have been disqualified from the medical panel due to a
conflict of interest, and he asks us to overrule the ―actual bias‖
standard used by the Board to evaluate such claims. Gamez also
asserts that the Workers‘ Compensation Act requires all members
__________________________________________________________
2 Gamez‘s surname is listed on medical documentation, health
insurance forms, and an accident report as ―Gamez-Alvarez.‖
However, he identified himself as ―Luis G. Gamez‖ in his
application for a hearing before the Labor Commission, and
―Gamez‖ has been the surname used in subsequent proceedings.
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of a medical panel to be specialists in the condition at issue, so Dr.
Biggs also should have been removed from the panel because he
does not specialize in low-back injuries. Finally, Gamez appeals
the outcome of the Labor Commission proceeding, contesting the
conclusion that his low back had ―returned to baseline‖ when his
back had never returned to the condition it was in prior to the
accident.
¶5 We agree with the Board that the Workers‘
Compensation Act requires only one member of a medical panel
to specialize in the condition at issue. So, even accepting Gamez‘s
characterization of Dr. Biggs as a generalist who does not
specialize in low-back injuries, this is not a basis to disqualify him
from the medical panel here because there is no dispute that the
other member of the panel qualifies as such a specialist.
¶6 However, we agree with Gamez that the actual bias
standard applied by the Board to resolve his conflict-of-interest
objection does not comport with the requirements of the statute.
We hold that where a medical panelist‘s impartiality could
reasonably be questioned, the requirement of an impartial
medical evaluation has not been met. Accordingly, we reverse this
portion of the Board‘s dismissal of Gamez‘s interlocutory
objection. And we remand to the Board for reconsideration of this
objection under this clarified legal standard.
¶7 Because we remand on this basis, we do not resolve
Gamez‘s claim that Dr. Biggs had a conflict of interest or that the
Board wrongly accepted the ALJ‘s conclusion that Gamez‘s low
back had returned to baseline.
BACKGROUND3
¶8 Gamez was injured in a rollover automobile accident
while employed as a subcontractor for B & S Drywall, Inc.
(B & S).4 At the time of the accident, Workers Compensation Fund
(WCF) served as the workers‘ compensation carrier for B & S.
__________________________________________________________
3 In reviewing a workers‘ compensation order from the Board,
we ―view the facts in the light most favorable to the Commission‘s
findings and recite them accordingly.‖ Wright v. Labor Comm’n,
2021 UT App 43, n.1, 489 P.3d 211 (citation omitted).
4 B & S has consistently been referred to as ―B & S
Construction‖ and ―B & S Construction Inc.‖ throughout the
(continued . . .)
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GAMEZ v. LABOR COMMISSION
Opinion of the Court
¶9 Gamez was initially treated in a hospital emergency room
for injuries to his left shoulder, left ankle, and head. He later
sought care for ongoing pain in his shoulder and low back.
¶10 Gamez subsequently pursued workers‘ compensation
benefits—including permanent partial disability benefits and
medical expenses—for the injuries to his left shoulder and low
back. WCF accepted Gamez‘s shoulder-related claim but
contested his low-back claim, arguing that he ―suffered
preexisting or independent medical problems that caused any
disability‖ related to his low back.
¶11 Because of this dispute, the ALJ referred the matter to a
medical panel. See UTAH ADMIN. CODE r. 602-2-2(A) (LexisNexis
2021) (―A panel will be utilized by the Administrative Law Judge
where one or more significant medical issues may be involved.‖).5
She appointed Dr. Jeremy Biggs, a board-certified occupational
and environmental medicine physician, to serve as the panel
chair.6 Among other appointments, Dr. Biggs was affiliated with
proceedings. However, the company‘s legal name is ―B & S
Drywall, Inc.‖
5 ―Generally a significant medical issue must be shown by
conflicting medical reports.‖ UTAH ADMIN. CODE r. 602-2-2(A)
(LexisNexis 2021). In this case, Gamez‘s treating physician issued
a report opining that Gamez‘s low-back symptoms were
―primarily the result of the motor vehicle rollover‖ and that ―any
pre-existing condition would have been permanently aggravated‖
by the accident. He then assessed Gamez with a ―7% whole-
person impairment for his lumbar injury.‖ A separate physician,
engaged by WCF, opined to the contrary that the accident had
neither medically caused nor further aggravated Gamez‘s low-
back degeneration and assessed Gamez with a ―7% whole-person
impairment for [the injury to] his left shoulder‖ only.
6 Occupational and Environmental Medicine (OEM) ―is a
board-certified specialty . . . that focuses on the diagnosis and
treatment of work-related injuries and illnesses.‖ What is OEM?,
AM . COLL. OF OCCUPATIONAL & ENV‘T. MED.,
http://acoem.org/Careers/What-Is-OEM (last visited Sept. 10,
2021). OEM physicians are ―experts in the complex web of factors
that affect health in the workplace‖ and help ―enhance the health
of workers through Clinical care, Prevention, Disability
management, Research, [and] Education.‖ Id.4
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the Rocky Mountain Center for Occupational and Environmental
Health (RMCOEH).
¶12 The ALJ directed Dr. Biggs to select ―specialists [he]
deem[ed] appropriate‖ to assist in his evaluation of the claims
related to Gamez‘s low back, noting that ―Adjudication Division
policy requires that medical panels have at least two members on
them.‖
¶13 Gamez objected to the appointment of Dr. Biggs because
he was not an orthopedic specialist, citing statutory language
requiring a medical panel to ―consist of one or more physicians
specializing in the treatment of the disease or condition involved
in the claim.‖ UTAH CODE § 34A-2-601(1)(c). In response, WCF
conceded that Dr. Biggs may not qualify as a low-back specialist
for purposes of subsection (1)(c), but argued that the statute
requires only one member of the medical panel to be a specialist,
so Dr. Biggs need not be disqualified on this basis. WCF then
requested the ALJ to ―direct Dr. Biggs to appoint at least one of
the other member(s) he selects to be board certified in
orthopedics,‖ rather than ―extend[ing] to Dr. Biggs the discretion
to select specialists that he ‗deems appropriate.‘‖
¶14 In response, the ALJ clarified to Dr. Biggs that ―[d]ue to
the medical issues in this matter,‖ he should ―select an orthopedic
specialist as a member of the panel.‖ Dr. Biggs ultimately
contracted with Dr. Michael Henrie to serve on the panel with
him. Dr. Henrie was a Doctor of Osteopathic Medicine with board
certification in physical medicine and rehabilitation, and a
subspeciality board certification in sports medicine.7
¶15 Gamez then sought interlocutory review of the ALJ‘s
interim order appointing the medical panel, contending that
(1) Dr. Biggs was unqualified to serve on the panel because, by
statute, all panelists must be experts in the medical subject matter
at issue, and Dr. Biggs was not; and (2) Dr. Biggs‘s affiliation with
RMCOEH presented a conflict of interest because WCF provides
funding to RMCOEH.
¶16 The Board denied Gamez‘s motion for interlocutory
review. With respect to his challenge to Dr. Biggs‘s qualification to
__________________________________________________________
7Neither party disputes that Dr. Henrie is a specialist in low-
back injuries, the condition at issue here.
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GAMEZ v. LABOR COMMISSION
Opinion of the Court
serve on the panel, it concluded that only ―one panel member
[need] have the requisite expertise in treating the injury or
condition at issue.‖ The Board noted that this has been standard
practice ―for many years‖ and remarked on the practical
limitations of requiring ―multiple physicians of every
subspeciality or expertise to be available to participate on a
Commission medical panel.‖ With respect to Gamez‘s allegation
that Dr. Biggs had a conflict of interest, the Board explained that
―a potential for bias is insufficient grounds for disqualification‖
from serving on a medical panel, and because Gamez had not
shown ―actual bias,‖ he could not prevail on his objection. The
Board transferred the matter back to the ALJ to complete
adjudication of Gamez‘s claims.
¶17 The medical panel, consisting of Dr. Biggs and Dr.
Henrie, ultimately found that Gamez‘s work-related accident had
only temporarily aggravated a preexisting low-back condition.
And the panel concluded that any increase in Gamez‘s low-back
symptoms ―was no longer significantly related to the [work]
injury by June 2017.‖ The panel later clarified,
[w]hen we stated that Mr. Gamez‘s low back pain
was no longer significantly related to the crash
injury by June 2017, we intended that to indicate
when he returned to baseline. After additional
discussion, we feel it is medically reasonable to say
Mr. Gamez‘s low back pain would be no longer
significantly related to his work injury and therefore
back to baseline by June 30, 2017.
¶18 The ALJ accepted the amended panel report over
Gamez‘s renewed objection. And she denied Gamez‘s claim for
permanent partial disability compensation.
¶19 Gamez then filed a motion for review with the Board,
challenging the medical panel‘s conclusions and Dr. Biggs‘s
participation on the panel. He requested that the matter be
remanded for consideration by a new medical panel.
¶20 The Board rejected Gamez‘s argument and upheld the
ALJ‘s decision. But one commissioner issued a concurrence
arguing for reconsideration of the Board‘s practice of rejecting
conflict-of-interest objections to medical panel appointments
unless the party offers ―evidence of actual bias.‖ The
commissioner noted that this actual bias standard was based on
the Board‘s reading of Johnston v. Labor Comm’n, 2013 UT App 179,
307 P.3d 615.
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¶21 Following the Board‘s denial of his motion for review,
Gamez petitioned for review in the court of appeals. He reasserted
his challenges to Dr. Biggs‘s impartiality and qualification to serve
on the panel, and contested the finding that the accident did not
cause permanent injury to his low back. The court of appeals
certified the matter to us pursuant to Utah Code section
78A-4-103(3) and Utah Rule of Appellate Procedure 43,
highlighting the important and unsettled question of law
presented, specifically: ―In workers‘ compensation cases, what
constitutes a conflict of interest sufficient to disqualify a physician
from serving on a medical panel?‖ In addition to this question, the
other issues raised by Gamez in the court of appeals are before
us.8
¶22 We exercise jurisdiction pursuant to Utah Code
subsection 78A-3-102(3)(b).
STANDARD OF REVIEW
¶23 The standard of review applied to an appeal from an
administrative decision ―depends on the type of agency action
alleged to be erroneous and whether that action incorporates a
specific standard of review under section 63G-4-403(4) of [the
Utah Administrative Procedures Act (UAPA)].‖ Murray v. Utah
Labor Comm’n, 2013 UT 38, ¶ 23, 308 P.3d 461. ―[A] challenge to an
administrative agency‘s finding of fact is reviewed for substantial
evidence.‖ Provo City v. Utah Labor Comm’n, 2015 UT 32, ¶ 8,
345 P.3d 1242 (citation omitted). ―[W]e review the law applied to
[those] facts for correctness.‖ Id. ¶ 17 (citation omitted). And ―we
review the lower tribunal‘s ultimate conclusion of whether a
given set of facts comes within the reach of a given rule of law as a
mixed question of law and fact.‖ Id. (citation omitted) (internal
quotation marks omitted).
__________________________________________________________
8 A motion to strike filed by WCF is before us as well. We
issued a replacement briefing order, under which both parties
filed replacement briefs. WCF then moved to strike three exhibits
appended to Gamez‘s replacement brief ―on the grounds that
such exhibits, presented for the first time in the replacement brief,
are not part of the record on appeal.‖ We deferred ruling on the
motion. Our resolution of this case does not involve the
information provided in the exhibits, and we have not considered
them. Accordingly, we deny the motion as moot.
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GAMEZ v. LABOR COMMISSION
Opinion of the Court
ANALYSIS
¶24 We first address Gamez‘s argument that Dr. Biggs was
unqualified to serve on the medical panel because he does not
specialize in low-back injuries. We reject Gamez‘s interpretation
of the Workers‘ Compensation Act to require all members of a
medical panel to specialize in the condition or injury at issue.
Rather, the statute mandates only that at least one panelist must
specialize in the relevant condition. And because neither party
disputes that Dr. Henrie meets this requirement, even accepting
Gamez‘s contention that Dr. Biggs does not qualify as a specialist,
that would not preclude him from panel membership here.
¶25 We then consider Gamez‘s argument that Dr. Biggs
should have been disqualified because his affiliation with
RMCOEH created a conflict of interest. We agree that the
heightened ―actual bias‖ standard does not comport with the
Workers‘ Compensation Act. We disavow it, and hold that where
a medical panelist‘s impartiality could reasonably be questioned,
the statutory requirement for an impartial medical evaluation has
not been met.
¶26 We therefore reverse the Board‘s dismissal of Gamez‘s
conflict-of-interest objection. And we remand this matter to the
Board to reconsider this objection in light of this clarified legal
standard. Accordingly, we do not reach the merits of Gamez‘s
claim that Dr. Biggs had a conflict of interest or his challenge to
the Board‘s conclusion that his back had ―returned to baseline.‖
I. MEDICAL PANEL QUALIFICATIONS
¶27 We first address Gamez‘s contention that the Board erred
when it upheld the appointment of Dr. Biggs as the medical panel
chair because Dr. Biggs does not specialize in the treatment of the
condition at issue in this case.
¶28 Subsection 601(1)(c) of the Workers‘ Compensation Act
mandates that a medical panel appointed to resolve the
controverted aspects of a workers‘ compensation claim ―shall
consist of one or more physicians specializing in the treatment of
the disease or condition involved in the claim.‖ UTAH CODE
§ 34A-2-601(1)(c). Gamez reads this subsection to mean that all
panel members must specialize in the relevant condition. So
under Gamez‘s interpretation of subsection 601(1)(c), a medical
panel may consist of one or more members, and all of those
members must specialize in the medical condition at issue.
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¶29 The interpretation of a statute is a question of law that we
review for correctness. Waite v. Utah Labor Comm’n, 2017 UT 86,
¶ 5, 416 P.3d 635. ―When interpreting a statute, our primary
objective is to ascertain the intent of the legislature.‖ McKitrick v.
Gibson, 2021 UT 48, ¶ 19, 496 P.3d 147 (citation omitted). Because
―[t]he best evidence of the legislature‘s intent is the plain language
of the statute itself, we look first to the plain language of the
statute.‖ Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000(alteration in original) (citation omitted) (internal quotation marks
omitted). In doing so, we read ―each term according to its
ordinary and accepted meaning.‖ State v. Barrett, 2005 UT 88, ¶ 29,
127 P.3d 682 (citation omitted) (internal quotation marks omitted).
¶30 The best support for Gamez‘s argument is the word
―consist‖ in the statutory text. ―Consist‖ means ―to be composed
or made up,‖ usually followed by ―of.‖ Consist,
MERRIAM-WEBSTER, https://www.merriam-webster.com/dictiona
ry/consist (last visited Feb. 24, 2022). So there is some textual
support for reading the statute to mean that a medical panel must
be made up of one or more physicians who all specialize in the
condition at issue.
¶31 But this is not the best reading of the statute because it
requires us to accept that a panel may consist of only one member.
And as we will explain, we agree with WCF that a panel generally
cannot, by definition, consist of just one person. So the phrase
―one or more‖ necessarily relates to the number of specialists
required on a medical panel, and not the total number of panelists.
See UTAH CODE § 34A-2-601(1)(c).
¶32 ―Panel‖ generally refers to at least two or more people,
and this meaning is consistent throughout various dictionaries.9
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9 Dictionaries, which serve as ―an historical record . . . of the
meanings which words in fact have borne,‖ provide a useful
starting point for the assessment of ordinary meaning. State v.
Bagnes, 2014 UT 4, ¶ 14, 322 P.3d 719 (citation omitted) (internal
quotation marks omitted). And while ―the dictionary alone is
often inadequate to the task of interpretation because different
definitions may support different interpretations,‖ GeoMetWatch
Corp. v. Utah State Univ. Rsch. Found., 2018 UT 50, ¶ 21,
428 P.3d 1064 (citation omitted) (internal quotation marks
omitted), the term ―panel‖ presents no such ambiguity.
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Opinion of the Court
For example, Merriam Webster‘s Dictionary defines panel as ―a
group of persons selected for some service (such as investigation
or arbitration).‖ Panel, MERRIAM-WEBSTER,
https://www.merriam-webster.com/dictionary/panel (last
visited Feb. 24, 2022) (emphasis added). The Oxford English
Dictionary defines panel as ―a small group of people brought
together to discuss, investigate, or decide upon a particular
matter.‖ Panel, OXFORD ENGLISH DICTIONARY,
www.oed.com/view/Entry/136796 (last visited Feb. 24, 2022)
(emphasis added). And the Collins English Dictionary defines
panel as ―a small group of people who are chosen to do something,
for example, to discuss something in public or to make a
decision.‖ Panel, COLLINS, https://www.collinsdictionary.com/us
/dictionary/english/panel (last visited Feb. 24, 2022) (emphasis
added). Further, while Black‘s Law Dictionary defines ―panel‖
solely in reference to potential jurors or selected arbiters, it too
refers exclusively to a ―group‖ or ―set‖ of persons or judges. Panel,
BLACK‘S LAW DICTIONARY (11th ed. 2019).
¶33 This commonly accepted meaning is reflected in the
ALJ‘s statement that ―Adjudication Division policy requires that
medical panels have at least two members on them.‖ And while
Gamez argues that the legislature intended ―only specialists‖ to
serve on a medical panel, ―we have repeatedly declined
invitations to interpret statutes contrary to their plain language
even when a party offers an interpretation that might better
advance the [legislative] purpose.‖ Zilleruelo v. Commodity
Transporters, Inc., 2022 UT 1, ¶ 40, 506 P.3d 509.
¶34 ―When we can ascertain the intent of the legislature from
the statutory terms alone, no other interpretive tools are needed.‖
Bagley, 2016 UT 48, ¶ 10 (citation omitted) (internal quotation
marks omitted). Here, the plain meaning of panel as a group of
two or more is clear. By extension, the phrase ―one or more‖
necessarily speaks to the number of specialists required to
participate on a panel, and not the number of panel members in
total. See UTAH CODE § 34A-2-601(1)(c) (―A medical panel . . . shall
consist of one or more physicians specializing in the treatment of
the disease or condition involved in the claim.‖).
¶35 Accordingly, the plain meaning of the statute is that at
least one of the physicians who serves on a medical panel must
specialize in the condition or injury involved in the claim. But it
does not require this of all panel members. And because the
statute is unambiguous, we ―have no need to resort to other
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methods of construction,‖ O’Keefe v. Utah State Ret. Bd.,
956 P.2d 279, 281 (Utah 1998), and our analysis is at an end.
¶36 Therefore, even if Dr. Biggs does not qualify as a
specialist in low-back injuries, the panel would meet the
requirements of subsection 601(1)(c) because neither party
disputes that Dr. Henrie so qualifies. Therefore, we conclude that
the Board properly determined the medical panel in this case was
suitably composed.10
II. CONFLICT OF INTEREST
¶37 Gamez next asserts that Dr. Biggs‘s affiliation with
RMCOEH presents a ―clear conflict of interest‖ that should
disqualify him from serving on the medical panel in this case
because WCF provides funding to RMCOEH.
¶38 Section 601 of the Workers‘ Compensation Act, which
governs the use of medical panels, does not explicitly require that
the members of a medical panel be impartial. However, both
parties agree that panel members must be impartial. And the
Board‘s review of Gamez‘s claim using an ―actual bias‖ standard
indicates that it too presumes that panelists must not harbor bias.
__________________________________________________________
10 This analysis has the effect of overturning holdings in a
number of court of appeals opinions that run counter to this
statutory analysis. See, e.g., Johnston v. Labor Comm'n,
2013 UT App 179, ¶¶ 21–22, 307 P.3d 615 (concluding that ―it is
readily apparent from a cursory review of the statute and relevant
case law that single-member medical panels are acceptable‖ and
that section 34A-2-601 ―plainly allows administrative law judges
to appoint single-member medical panels‖); Foye v. Labor Comm’n,
2018 UT App 124, ¶ 22, 428 P.3d 26 (suggesting that section
601(1)(c) requires that all panelists—regardless of how many
members make up a panel—be specialists: ―[T]he 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‖ (emphasis added) (citing UTAH CODE § 34A-2-601(1)(c));
Fastenal v. Labor Comm’n, 2020 UT App 53, ¶ 32, 463 P.3d 90 (citing
Foye for the proposition that ―the statute does not require the
members of the panel to be experts in force; it requires them 'to
specializ[e] in the treatment of the disease or condition involved
in the claim‘‖ (alteration in original) (citing UTAH CODE
§ 34A-2-601(1)(c)).
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Opinion of the Court
¶39 While there is no direct language in section 601
establishing such a requirement, it can be inferred from the use of
―impartial‖ in subsection 601(1)(d), which grants the adjudication
division the authority to ―employ a medical director or one or
more medical consultants‖ as ―an alternative method of obtaining
an impartial medical evaluation of the medical aspects of a
controverted case‖ if certain conditions are met. UTAH CODE
§ 34A-2-601(1)(d) (emphasis added).
¶40 ―[W]herever possible, we give effect to every word of a
statute, avoiding [a]ny interpretation which renders parts or
words in a statute inoperative or superfluous.‖ Downs v.
Thompson, 2019 UT 63, ¶ 17, 452 P.3d 1101 (second alteration in
original) (citation omitted) (internal quotation marks omitted).
And we infer from the description of the options in subsection
601(1)(d) as ―alternative method[s] of obtaining an impartial
medical evaluation‖ that the primary method to which they are
alternatives—namely, a medical panel as established in subsection
601(1)(a)—must also be impartial. (Emphases added.) And if a
medical panel is to provide an impartial medical evaluation, it
follows that the physicians on the panel must be impartial.
¶41 What constitutes impartiality, however, is not defined in
section 601 or the Workers‘ Compensation Act more broadly. But
in Johnston v. Labor Comm’n, the court of appeals held that an
allegation of apparent bias on the part of a medical panelist
because he had an ―office-sharing agreement with numerous
insurance medical examiners‖ was ―speculative and not
supported by the record.‖ 2013 UT App 179, ¶¶ 7, 19, 307 P.3d 615(internal quotation marks omitted). And it declined to overturn
the Labor Commission‘s resolution of the claim of bias without an
objection hearing on that basis. Id. ¶ 20.
¶42 Although the Johnston court did not use the term ―actual
bias‖ in reaching its holding, subsequent Labor Commission cases
have routinely cited Johnston when rejecting claims of bias or
conflict of interest against physicians serving on medical panels.
And the decisions have done so—as the Board does here—by
finding a potential for bias ―insufficient grounds for
disqualification,‖ and holding that parties must offer evidence of
―actual bias‖ to successfully challenge a medical panel
appointment.
¶43 Gamez asks us to ―significantly limit or overrule‖
Johnston and its progeny, and instead apply our Code of Judicial
Conduct to identify the types of conflicts of interest that would be
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sufficient to disqualify a physician from serving on a medical
panel. He argues that because we have observed that medical
panels ―are considered ‗adjuncts‘ to the ALJ at the commission
level,‖ In re Discipline of LaJeunesse, 2018 UT 6, ¶¶ 5, 8,
416 P.3d 1122, we should treat physicians serving on them as akin
to ―court official[s]‖ or other ―quasi-judicial officer[s],‖ and assess
their impartiality using the same standard we apply to judicial
conflicts of interest. And he emphasizes that in practice, medical
panel reports are almost always ―adopted wholesale by the Labor
Commission,‖ thereby compounding the problems inherent in
relying on a standard with a ―near impossibl[e]‖ burden of proof.
¶44 WCF disagrees. It argues that application of our judicial
code to medical panels would be inappropriate because ―medical
panels are not intended to serve in any judicial capacity
whatsoever,‖ but rather in an ―advisory role, similar to an expert
witness.‖ Further, WCF points out that even ALJs are not
governed by the Code of Judicial Conduct and, unlike judges,
medical panels do not hold final decision-making responsibilities.
While WCF concedes that our code of conduct ―may have some
analogous application,‖ it argues that the Board correctly denied
Gamez‘s motion for interlocutory review because, in line with
Johnston, there was ―no evidence of actual bias or conflict of
interest on the part of the medical panel members in general and
Dr. Biggs in particular.‖
¶45 But while the parties focus on Johnston and the judicial
code, the impartiality requirement stems from subsection
601(1)(d) of the statute. See supra ¶¶ 38–39. So the real question
before us is the meaning of ―impartial‖ within the context of the
statute.
¶46 ―We have repeatedly affirmed our commitment to
interpreting statutes according to the ‗plain‘ meaning of their
text.‖ Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 248 P.3d 465(citation omitted); see, e.g., supra ¶¶ 29–34. ―Thus, when the words
of a statute consist of ‗common, daily, nontechnical speech,‘ they
are construed in accordance with the ordinary meaning such
words would have to a reasonable person familiar with the usage
and context of the language in question.‖ Olsen, 2011 UT 10, ¶ 9
(citation omitted).
¶47 And here, imputing an actual bias standard to the
statutory text overlooks a key component of the plain meaning of
―impartial.‖ As mentioned above, supra ¶ 32 n.9, dictionaries
provide a useful starting point for the assessment of ordinary
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GAMEZ v. LABOR COMMISSION
Opinion of the Court
meaning. State v. Bagnes, 2014 UT 4, ¶ 14, 322 P.3d 719. Black‘s
Law Dictionary defines ―impartial‖ as ―[n]ot favoring one side
more than another; unbiased and disinterested; unswayed by
personal interest.‖ Impartial, BLACK‘S LAW DICTIONARY (11th ed.
2019) (emphasis added). To be ―disinterested,‖ in turn, means to
be ―[w]ithout interest or concern,‖ and ―[n]ot influenced by
interest.‖ Disinterested, OXFORD ENGLISH DICTIONARY,
www.oed.com/view/Entry/54618 (last visited Feb. 24, 2022).
¶48 Thus, to assess whether an individual is ―impartial,‖ one
must also assess whether they are ―disinterested‖—in other
words, whether they are free from a conflict of interest. And a
―conflict of interest‖ includes both ―[a] real or seeming
incompatibility between one‘s private interests and one‘s public
or fiduciary duties.‖ Conflict of interest, BLACK‘S LAW DICTIONARY
(11th ed. 2019) (emphasis added).
¶49 The actual bias standard applied below obscures this
element of disinterestedness. Indeed, even the meaning of ―bias‖
is not limited to ―actual bias.‖ Black‘s Law Dictionary defines bias
as ―[a] mental inclination or tendency; prejudice; predilection.‖
Bias, BLACK‘S LAW DICTIONARY (11th ed. 2019). ―Actual bias‖ is
merely one of multiple sub-types of ―bias‖—a list that includes
―implied bias,‖ or ―prejudice that is inferred from the experiences
or relationships of a judge, juror, witness, or other person.‖
Implied bias, BLACK‘S LAW DICTIONARY (11th ed. 2019). So the term
incorporates both actual bias (prejudice) and bias that can be
inferred because of a person‘s relationships.11
¶50 Thus, in keeping with the statute, all physicians
appointed to medical panels must be ―impartial‖ in order to
provide an ―impartial medical evaluation.‖ And recognizing the
scope of the term ―impartial,‖ we hold that where a medical
panelist‘s impartiality could reasonably be questioned, the
statutory requirement for an impartial medical evaluation has not
been met.
__________________________________________________________
11 Merriam-Webster‘s Dictionary similarly defines bias in a
manner that incorporates both actual prejudice and an inclination
towards such prejudice. See Bias, MERRIAM-WEBSTER,
https://www.merriam-webster.com/dictionary/bias (last visited
Nov. 1, 2021) (defining ―bias‖ as both ―an inclination of
temperament or outlook‖ and ―an instance of such prejudice‖).
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Cite as: 2022 UT 20Opinion of the Court
¶51 We agree with WCF that medical panels are not subject to
our Code of Judicial Conduct. And we reject Gamez‘s request that
we apply the Code to medical panelists. However, we reference
the Code here to provide illustrative examples of the
circumstances that have been deemed to create a conflict of
interest for judges. Under rule 2.11 of the Code of Judicial
Conduct, ―[a] judge shall disqualify himself or herself in any
proceeding in which the judge‘s impartiality might reasonably be
questioned.‖ The rule then provides a non-exhaustive list of
circumstances under which judges must disqualify themselves
because their impartiality might, in fact, be reasonably
questioned, including where: the judge‘s spouse or immediate
family is involved in the proceeding as a lawyer or a party,
id. 2.11(A)(2)(a)–(b); a ―judge knows that he or she, individually or
as a fiduciary . . . has an economic interest in the subject matter in
controversy or in a party to the proceeding,‖ id. 2.11(A)(3); a
―judge knows or learns . . . that a party, a party‘s lawyer, or the
law firm of a party‘s lawyer has within the previous three years
made aggregate contributions to the judge‘s retention in an
amount . . . greater than $50,‖ id. 2.11(A)(4); or a judge ―has
made . . . public statement[s] . . . that . . . appear[] to commit the
judge to . . . rule in a particular way in the proceeding . . . .‖
id. 2.11(A)(5).
¶52 We provide these examples for illustrative purposes only.
And we reiterate that we are not imposing the Code of Judicial
Conduct upon medical panelists. We hold only that a physician
should be disqualified from a medical panel where his or her
impartiality could reasonably be questioned. The examples we
provide above may be useful in conducting that analysis, but we
do not presume that they will apply across the board in the
different setting of medical evaluations under the Workers‘
Compensation Act. And while we provide this general standard
for assessing impartiality, we note that the Labor Commission
could choose to make more specific rules in line with or above this
floor that are tailored to the medical evaluation context. See UTAH
CODE § 34A-1-104(1) (―[T]he commission may . . . adopt rules
when authorized by this title, or Title 34, Labor in General, in
accordance with the procedures of Title 63G, Chapter 3, Utah
Administrative Rulemaking Act.‖).
¶53 Because we have clarified the standard for evaluating an
objection to a medical panelist based on an alleged conflict of
interest, we vacate the Board‘s dismissal of Gamez‘s motion for
interlocutory review on this issue. And we remand to the Board to
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GAMEZ v. LABOR COMMISSION
Opinion of the Court
consider Gamez‘s objection under this clarified standard.
Accordingly, we do not reach Gamez‘s arguments that Dr. Biggs‘s
affiliation with RMCOEH created a conflict of interest in this case
or that the Board wrongly accepted the medical panel‘s
conclusion that his low-back condition had ―returned to baseline.‖
CONCLUSION
¶54 We uphold the Board‘s conclusion that under Utah Code
subsection 34A-2-601(1)(c), only one medical panel member need
specialize in the condition at issue. But we disavow the actual bias
standard that has governed allegations of panelist partiality in
Labor Commission cases following Johnston v. Labor Comm’n,
2013 UT App 179, 307 P.3d 615. Accordingly, we vacate the
Board‘s dismissal of Gamez‘s interlocutory objection to the
medical panel based on Dr. Biggs‘s alleged conflict of interest.
And we remand to the Board to consider this objection in
accordance with the legal standard established in this opinion.
16