Clean Harbors Environmental v. Labor Commission , 440 P.3d 916 ( 2019 )

2019 UT App 52THE UTAH COURT OF APPEALS
CLEAN HARBORS ENVIRONMENTAL SERVICES AND
AMERICAN ZURICH INSURANCE CO.,
Petitioners,
v.
LABOR COMMISSION AND DAVID FOX,
Respondents.
Opinion
No. 20180448-CA
Filed April 4, 2019
Original Proceeding in this Court
Mark D. Dean and Kristy L. Bertelsen, Attorneys
for Petitioners
Scott F. Squire, Attorney for Respondent David Fox
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY
concurred.
HARRIS, Judge:
¶1 In administrative proceedings before the Labor
Commission of Utah (the Commission), David Fox was awarded
permanent total disability benefits due to a workplace injury.
His employer, Clean Harbors Environmental Services (Clean
Harbors), and its insurer, American Zurich Insurance Company,
seek judicial review of the Commission’s decision, and
specifically challenge its refusal to exclude certain medical
evidence. We conclude that the Commission did not abuse its
discretion in considering the applicable medical evidence, and
we therefore decline to disturb the Commission’s ultimate
decision to award benefits to Fox.
Clean Harbors Envtl. v. Labor Commission
BACKGROUND
¶2 One day in August 2012, Fox’s duties as an employee of
Clean Harbors required him to clean hazardous material out of a
large tank using a high-pressure hose. Even though Fox was
dressed in a “haz-mat” suit and was wearing three pairs of
gloves, he injured his right hand when he inadvertently turned
on the hose while his hand was in front of the nozzle. The water,
pressurized to 3,500 pounds per square inch, blasted into the
palm of Fox’s hand and base of his wrist. Fox was immediately
taken to the hospital where a doctor (Doctor 1) performed
surgery on him that night.
¶3 After surgery, Fox began physical therapy but, despite
some improvement, over the next few months he continued to
experience pain, numbness, and hypersensitivity to temperature
in his hand, which prevented him from returning to work. In
January 2014, Doctor 1 performed a second surgery on Fox, this
time for carpal tunnel release, neuroma removal, and radial
nerve repair. A few weeks later, at a post-operative follow-up
appointment, Doctor 1 observed that Fox had “pain radiating up
into the axilla, cold intolerance and swelling with increased
hairiness,” and eventually diagnosed Fox with Complex
Regional Pain Syndrome (CRPS). Fox sought a second opinion
from another doctor (Doctor 2), who also diagnosed Fox with
CRPS, and opined that Fox’s “CRPS is an extremely
straightforward and classic example of CRPS—as
straightforward of a case as [she had] ever seen.” A few months
later, Fox began treatment with yet another doctor (Doctor 3),
who in September 2014 also diagnosed Fox with CRPS.
¶4 In an effort to ameliorate Fox’s symptoms, Doctor 2
referred him to physical and occupational therapy, which he
attended. In addition, Doctor 2 implanted a spinal cord
stimulator into Fox’s back in an attempt to help alleviate some of
his pain. Although the implant was initially successful, after a
20180448-CA 2 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
number of months it became infected and had to be removed
and eventually re-implanted.
¶5 Over a year later, in December 2015, Clean Harbors sent
Fox to a fourth doctor (Doctor 4). Although Doctor 4 concluded
that, based on his injury, Fox qualified for either a partial upper-
extremity or whole-person impairment rating, Doctor 4 also
concluded that Fox did not have CRPS. In making her diagnosis,
Doctor 4 relied upon the American Medical Association Guides,
5th Edition (the 2000 AMA Guides), a 2000 publication that
contains standards for, among other things, the diagnosis of
CRPS. Pursuant to those standards, an individual can be
clinically diagnosed with CRPS only if he or she exhibits at least
eight out of eleven specific objective symptoms, and Doctor 4
concluded that Fox exhibited only three of these symptoms.
¶6 In March 2016, Fox filed a permanent-total-disability
claim for workers’ compensation benefits, asserting that he had
sustained injuries to his right hand while working for Clean
Harbors. The matter proceeded to an evidentiary hearing before
an administrative law judge (ALJ), and at that hearing both
parties agreed that Fox’s hand had been injured in the workplace
accident, but they disagreed about the current condition of Fox’s
hand, specifically about his diagnosis of CRPS. In support of his
claim, Fox submitted the medical opinions of Doctor 1, Doctor 2,
and Doctor 3, all of whom had diagnosed him with CRPS.
Conversely, Clean Harbors submitted Doctor 4’s medical
opinion that Fox did not have CRPS. After the hearing, the ALJ
determined, among other things, that there was “a medical
controversy regarding medical causation, functional restrictions,
date of medical stability and recommended medical care,” and
ordered that these issues be referred to an impartial two-person
medical panel (Panel) for consideration.
¶7 The Panel was comprised of two medical doctors, one a
specialist in occupational medicine and the other a specialist in
20180448-CA 3 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
pain management. After some legal wrangling that required the
Panel to issue an amended report, it ultimately concluded that
Fox has CRPS. To reach that diagnosis, the Panel did not use the
2000 AMA Guides or Utah’s 2006 Impairment Guides (the 2006
Utah Guides), which refer to the 2000 AMA Guides; instead, the
Panel used the more recent “Budapest Criteria” established by
the International Association for the Study of Pain, which the
ALJ found were “the most widely accepted diagnostic criteria
among pain specialists.” Under those criteria, an individual has
CRPS if they exhibit symptoms in three out of four categories,
and the Panel concluded that Fox’s symptoms met those criteria.
It stated that both the available medical records and its
examination of Fox “strongly support[] the diagnosis of CRPS.”
The Panel concluded that Fox’s condition—CRPS—was
medically caused by the workplace accident.
¶8 Soon after the Panel issued its final report, Clean Harbors
filed an objection, arguing that the ALJ should not adopt the
report because the Panel did not use the diagnostic criteria found
in the 2000 AMA Guides or the 2006 Utah Guides, which Clean
Harbors maintained was required by a state regulatory
provision contained in rule R612-300-9(A) of the Utah
Administrative Code (the Rule). The ALJ rejected this argument,
and concluded that the Rule required use of the 2000 AMA
Guides only when “assessing an individual’s impairment
rating,” something that was not at issue in this case. After
refusing to exclude the Panel’s report, the ALJ ultimately
concluded that, “[b]ased upon a preponderance of the evidence,”
which evidence included not only the Panel’s report but also the
opinions of the other doctors, Fox did indeed suffer from CRPS,
which was medically caused by the accident, and that Fox was
therefore entitled to an award of permanent total disability
compensation.
¶9 Clean Harbors appealed the ALJ’s decision to the
Commission, arguing that the ALJ erred in considering the
20180448-CA 4 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
Panel’s report, and asserting that the ALJ’s Order should be
reversed and a new medical panel convened to review the
matter under the correct standard. After review, the Commission
agreed with the ALJ that the Rule did not require exclusion of
the Panel’s report in this case, because “the [P]anel’s diagnosis of
CRPS was not rendered as part of an impairment rating but was
the product of its impartial and expert review of [Fox’s]
condition and his medical history.” The Commission stated that
the Panel’s report “represents a thorough and well-reasoned
review of the medical aspects of [Fox’s] case,” and concluded
that it was “persuaded by the [P]anel’s conclusions because they
are supported by the evidence in the record, including the
opinions” of some of the other doctors.
ISSUE AND STANDARD OF REVIEW
¶10 Clean Harbors now seeks judicial review of the
Commission’s determination, and specifically asks us to consider
whether the Commission correctly determined that the Panel’s
report was admissible. 1 “We review the Commission’s refusal to
exclude a medical panel report or remand for an objection
hearing under an abuse of discretion standard, providing relief
only if a reasonable basis for that decision is not apparent from
1. In its brief, Clean Harbors phrased the issue in a slightly
different manner, stating that the issue is whether the
Commission erred “in determining that medical causation was
met.” At oral argument, however, it clarified that it was not
intending to bring a sufficiency-of-the-evidence challenge to the
Commission’s ultimate determination of medical causation, a
wise decision given that there was plenty of medical evidence—
including but not limited to the Panel’s report—to support a
finding of medical causation in this case.
20180448-CA 5 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
the record.” Bade-Brown v. Labor Comm’n, 2016 UT App 65, ¶ 8,
372 P.3d 44 (quotation simplified).
ANALYSIS
¶11 Clean Harbors’s argument is premised entirely upon the
application of the Rule. See Utah Admin. Code R612-300-9. Clean
Harbors asserts that the Rule requires that any medical
evaluation of whether Fox has CRPS be governed by the 2000
AMA Guides which, as noted, list eleven symptoms that are
known to be associated with CRPS, and state that “[a]t least
eight of these findings must be present concurrently for a
diagnosis of CRPS.” See Am. Med. Ass’n, Guides to the Evaluation
of Permanent Impairment 496 (Linda Cocchiarella & Gunnar B.J.
Andersson eds., 5th ed. 2000). No doctor has opined that Fox
ever concurrently exhibited eight of the eleven symptoms listed
in the 2000 AMA Guides and, for this reason, Clean Harbors
takes the position that Fox was inaccurately diagnosed with
CRPS, and that the Commission should not have considered the
Panel’s report.
¶12 For his part, Fox maintains that the CRPS diagnostic
criteria set forth in the 2000 AMA Guides have been superseded
in the medical literature by the “Budapest Criteria,” which
Doctor 2 stated were adopted in 2010 by the International
Association for the Study of Pain. Fox asserts that the medical
professionals—including the medical panel—who examined him
and diagnosed him with CRPS were following the most current
standard of medical care, which requires that a patient exhibit
symptoms in three of four areas, diagnostic criteria that he
clearly meets. Further, he asserts that the Rule upon which Clean
Harbors relies is inapplicable here, because that Rule is, by its
terms, limited to cases in which impairment ratings are at issue,
and notes that no such rating was at issue in this case. In our
view, Fox has the better of the arguments.
20180448-CA 6 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
¶13 “We review administrative rules in the same manner as
statutes, focusing first on the plain language of the rule.” Utah
Chapter of the Sierra Club v. Air Quality Board, 2009 UT 76, ¶ 13,
226 P.3d 719. “In our inquiry, we seek to give effect to the intent
of the body that promulgated the rule.” Burns v. Boyden, 2006 UT
14, ¶ 19, 133 P.3d 370. But “an agency’s rules must be consistent
with its governing statutes,” and we therefore look to both the
rules and the governing statutes and construe the rule “together
with the statute to make, if possible, an effectual piece of
legislation in harmony with common sense and sound reason.”
Newspaper Agency Corp. v. Department of Workforce Services, 1999
UT App 222, ¶ 12, 984 P.2d 399 (quotation simplified).
Accordingly, as we do with questions of statutory interpretation,
we begin our evaluation of the Rule with an examination of the
Rule’s text. See Sierra Club, 2009 UT 76, ¶¶ 37–38 (looking to the
“plain language” of a regulatory provision); see also Craig v.
Provo City, 2016 UT 40, ¶ 33, 389 P.3d 423 (interpreting a statute
beginning with its text).
¶14 According to its title, 2 the Rule governs “Permanent
Impairment Ratings,” and its text instructs tribunals, when
“rat[ing] a permanent impairment,” to first consult Utah Code
section 34A-2-412, which contains a list of some permanent
impairment ratings. See Utah Admin. Code R612-300-9(A). If
section 34A-2-412 does not provide an impairment rating for the
2. We recognize that “the title of a statute is not part of the text of
a statute, and absent ambiguity, it is generally not used to
determine a statute’s intent.” Blaisdell v. Dentrix Dental Sys., Inc.,
2012 UT 37, ¶ 10, 284 P.3d 616 (quotation simplified). However,
the title of a statute “is persuasive and can aid in ascertaining the
statute’s correct interpretation and application.” Id. (quotation
simplified). Although we do not find the text of the Rule
ambiguous, we mention the title here because it is entirely
consistent with the plain meaning of the text.
20180448-CA 7 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
condition at issue, then the Rule instructs tribunals to look next
to the 2006 Utah Guides “to rate a permanent impairment.” Id.(stating that the 2006 Utah Guides “are to be used to rate a
permanent impairment not expressly listed in Section 34A-2-
412”). Finally, if the 2006 Utah Guides fail to supply the answer,
the Rule instructs tribunals that “impairment ratings are to be
established according to the” 2000 AMA Guides. Id. R612-300-
9(B). Fox correctly points out that the Rule, by its explicit terms,
is limited in its application to proceedings establishing
“impairment ratings.” Nothing in the Rule indicates any
application to proceedings not involving the establishment of an
impairment rating, and we are reluctant to read such language
into the Rule, not only because such a reading would be contrary
to plain language principles of interpretation, see I.M.L. v. State,
2002 UT 110, ¶ 25, 61 P.3d 1038, but also because workers’
compensation statutes and regulations are to be construed
“liberally in favor of finding employee coverage,” Olsen v.
Samuel McIntyre Inv. Co., 956 P.2d 257, 260 (Utah 1998); see also
Newspaper Agency Corp., 1999 UT App 222, ¶ 12 (stating that “an
agency’s rules must be consistent with its governing statutes,”
and “rules made in the exercise of a power delegated by the
statute should be construed together with the statute to make, if
possible, an effectual piece of legislation in harmony with
common sense and sound reason” (quotation simplified)).
¶15 The proceeding before the ALJ and the Commission was
not a proceeding to establish an impairment rating. When Clean
Harbors argued, to the Commission, that the Rule required
application of the 2000 AMA Guides in this case, the
Commission rejected the argument, noting that it was “unaware
of any precedent for using [the 2000 AMA Guides] to reject a
medical panel’s general diagnosis,” and that “the panel’s
diagnosis of CRPS was not rendered as part of an impairment
rating but was the product of its impartial and expert review of
Mr. Fox’s condition and his medical history.” The Commission
succinctly concluded that “the medical panel was not required to
20180448-CA 8 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
apply the standards contained in the impairment guides in order
to assess Mr. Fox with CRPS as a result of the work accident.”
¶16 Clean Harbors resists this conclusion, and the limiting
nature of the plain language of the Rule, by first asserting that
the 2006 Utah Guides and the 2000 AMA Guides have “been
adopted by the Commission generally for diagnostic criteria.”
Although it cites no authority to support this proposition, Clean
Harbors reasons that the Commission should, for the sake of
consistency, apply the same standard to both impairment ratings
and diagnostic conclusions. We reject this argument because,
while consistency may be a laudable goal in the abstract, it does
not give us license to ignore the plain language of the Rule. And
the Rule by its express terms is limited in its application to
proceedings in which the establishment of an impairment rating
is sought. 3
3. Given the nature of this case, neither party has occasion to
challenge the Rule’s mandate—in 2019—that nineteen-year-old
diagnostic standards be applied to Labor Commission cases that
do involve the establishment of a permanent impairment rating.
While there may be some areas of medicine in which not much
has changed in two decades from a diagnostic standpoint—after
all, a broken arm is a broken arm—we pause to wonder about
the wisdom of a state administrative agency attempting to tell
medical professionals how to diagnose medical conditions at all,
let alone mandating the use of date-anchored and therefore
potentially-outdated diagnostic criteria across the medical
spectrum. In this case, three doctors plus a medical panel
definitively diagnosed Fox with CRPS, using diagnostic criteria
they deemed to be consistent with current medical science. One
of those doctors—Doctor 2—seemed especially exercised about
potentially being told by administrative rulemakers how to
diagnose her patients, and included the following extraordinary
(continued…)
20180448-CA 9 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
(…continued)
comments in a progress note in her medical record of one of
Fox’s visits:
In reviewing [the 2006 Utah Guides] it does not
appear that significant effort or expertise was
expended in developing these guidelines, not the
least because the name of the diagnosis is incorrect in
multiple locations . . . . The “extensive review” cited
by Barth is a 14-year-old opinion article published
in the AMA Newsletter. . . . Additionally the
comments on the “overlap of the diagnosis of
CRPS and the Pain Disorders as listed under the
somatoform disorders” [are] inappropriate in
implying that CRPS is psychogenic or that patients
with CRPS do not have a “legitimate” medical
condition—rather there are very specific, objective,
diagnostic findings and criteria for CRPS. Taken as
a whole this Guide appears unscientific and rather
prejudiced against patients with CRPS.
....
Additionally the recommendation in the [2000
AMA Guides] to have eight (!) signs of CRPS
present at the time of examination is bizarre.
....
There is an utter absence of evidence to support
[the 2000 AMA Guides’] list of symptoms and a
requirement of 8 of them to be present at the time
of evaluation as somehow confirming the diagnosis
of CRPS . . . . I can only surmise that this list comes
from very old, very outdated information. In 2010
the International Association for the Study of Pain
(IASP) published updated diagnostic criteria for
[CRPS]—the so-called Budapest Criteria. These
criteria have been validated with a sensitivity of
(continued…)
20180448-CA 10 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
¶17 Second, Clean Harbors points to a line in the 2006 Utah
Guides, wherein it is “recommend[ed] that for the diagnosis of
CRPS to be given, it must first meet the criteria as described in
the [2000 AMA Guides].” Utah Labor Comm’n, Utah Labor
Commission’s Supplemental 2006 Impairment Rating Guides § 2.1(a)
(Alan L. Colledge ed., 2006). But a mere “recommendation” by
the committee that compiled the 2006 Utah Guides cannot
(…continued)
99% and specificity of 79%. They are considered
the definitive diagnostic criteria and should be the
ONLY criteria used to diagnose CRPS.
If these comments are at all representative of the medical
community’s collective feeling about the Rule, it might be time
for its reexamination. In any event, we leave for another day the
question of whether, in a case that actually involves
establishment of an impairment rating, the Rule’s apparent
limitation on recovery—where current medical science concludes
that injury is present, but the Rule compels a contrary conclusion
by mandating reliance on outdated diagnostic standards—would
be inconsistent with statutory mandates that injured workers be
compensated for medical conditions caused by workplace
injuries, see Utah Code Ann. § 34A-2-401(1) (LexisNexis 2015)
(stating that workers injured in a workplace accident “shall be
paid . . . compensation for [the] loss sustained”), and that the
Commission adopt scientifically sound protocols, see id. § 34A-2-
407.5 (stating that the Commission may adopt “reasonable health
care treatment protocols, that include determinations of medical
necessity, and medical treatment and quality care guidelines that
are: (a) scientifically based; (b) peer reviewed; and (c) consistent
with any general standards for health care treatment protocols
that the commission establishes by rule”), as well as with the
longstanding principle that workers’ compensation statutes be
construed “liberally in favor of finding employee coverage,” see
Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 260 (Utah 1998).
20180448-CA 11 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
eclipse the plain language of the applicable Rule. Indeed, as
noted, the Rule does not require the use of the 2000 AMA Guides
for general diagnostic purposes, and Clean Harbors provides no
other authority for the proposition that such a recommendation
is entitled to binding effect on the Commission.
¶18 Having concluded that the Rule does not mandate
exclusion of the Panel’s report, we next examine whether there
was any other basis on which the Panel’s report should have
been excluded. In Utah, workers injured by an industrial
“accident arising out of and in the course of” their employment
are entitled to workers’ compensation benefits. Utah Code Ann.
§ 34A-2-401(1) (LexisNexis 2015). This statute requires injured
workers to prove, among other things, medical causation,
meaning that “the stress, strain, or exertion required by his or
her occupation led to the resulting injury or disability.” Cook v.
Labor Comm’n, 2013 UT App 286, ¶ 12, 317 P.3d 464 (quotation
simplified). When considering whether to award workers’
compensation benefits, an ALJ must refer “significant medical
issues,” such as “[c]onflicting medical opinions related to
causation of the injury or disease,” to an independent medical
panel. Utah Admin. Code R602-2-2(A). The panel must then
evaluate the medical evidence and complete a report advising
the ALJ as to the medical issues, see Utah Code Ann. § 34A-2-601,
which report the ALJ has “discretion to adopt or reject . . . on the
basis of the evidence developed in the case,” Foye v. Labor
Comm’n, 2018 UT App 124, ¶ 23, 428 P.3d 26.
¶19 Under applicable statutes, there are “three potential
scenarios in which a medical panel report can be admitted into
evidence.” Johnston v. Labor Comm’n, 2013 UT App 179, ¶ 26, 307
P.3d 615 (citing Utah Code Ann. § 34A-2-601). “The first is where
no objection to the medical report is made and the report is
admitted into evidence.” Bade-Brown v. Labor Comm’n, 2016 UT
App 65, ¶ 10, 372 P.3d 44 (quotation simplified). “The second
occurs when an objection to the medical panel report is timely
20180448-CA 12 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
filed and the [ALJ] convenes a hearing on the objection,” after
which the report may be considered as evidence only if it is
“sustained by the testimony admitted.” Id. (quotation
simplified). The third, although not directly addressed in the
statute, occurs “when an objection to the report is timely filed
but the [ALJ] elects not to hold an objection hearing.” Id.(quotation simplified). In this scenario, the ALJ’s decision is
proper if she “properly exercised her discretion in denying a
hearing” and if the objection to the medical panel report was not
well taken. Id. (quotation simplified).
¶20 In this case, the ALJ did not abuse her discretion in
denying a hearing, because Clean Harbors’s sole objection to the
medical panel report was not well taken. Although Clean
Harbors objected to the admission of the Panel’s report, that
objection was based entirely upon its argument regarding
application of the Rule, which the ALJ properly rejected for the
reasons we have articulated above. Thus, we perceive no abuse
of discretion on the part of the the ALJ both in denying Clean
Harbor’s request for a hearing and in overruling its objection to
the Panel’s report, and no abuse of discretion by the Commission
in considering the Panel’s report.
¶21 The task facing the Commission in this case was to
determine whether Fox’s accident resulted in CRPS. To qualify
for compensation, Fox was required to show that his accident
was both the legal and medical cause of his injury. See Hutchings
v. Labor Comm’n, 2016 UT App 160, ¶ 16, 378 P.3d 1273. “Medical
causation is fundamentally a factual determination.” Id. ¶ 23.
And the purpose of a medical panel report is to “evaluate [the]
medical evidence and advise an [ALJ] with respect to the [ALJ’s]
ultimate fact-finding responsibility.” Id. (quotation simplified).
However, the Commission is not required to adopt the findings
of a medical panel’s report “if other substantial conflicting
evidence in the case supports a contrary finding.” Utah Code
Ann. § 34A-2-601(2)(e)(ii). Indeed, it is ultimately “the
20180448-CA 13 2019 UT App 52Clean Harbors Envtl. v. Labor Commission
prerogative and the duty of the Commission” to consider both
the panel’s report and “all of the other evidence” when deciding
causation. Bade-Brown, 2016 UT App 65, ¶ 13 (quotation
simplified).
¶22 Here, the Commission examined the Panel’s report and
determined that it was proper to adopt its findings. The Panel in
this case was comprised of two qualified physicians who
examined Fox and properly considered the reports of his
examining physicians in light of “the most widely accepted
diagnostic criteria among pain specialists.” Its conclusion that
Fox suffered CRPS as a result of the accident was well-reasoned
and highly probative. We perceive no reason why the
Commission should not have considered and adopted the
Panel’s report.
CONCLUSION
¶23 While the Rule might—perhaps unwisely—require
medical professionals to utilize outdated diagnostic standards
when establishing an impairment rating, the Rule by its terms
applies only to proceedings to establish a permanent impairment
rating. Such a rating was not at issue in this case, and we decline
Clean Harbors’s invitation to read into the Rule a broader
requirement that might prevent medical professionals, when
diagnosing their patients outside the context of establishing an
impairment rating, from utilizing current medical diagnostic
standards. Accordingly, the Commission did not err by
considering the Panel’s report. We therefore decline to disturb its
conclusions.
20180448-CA 14 2019 UT App 52