Hoffman v. Labor Commission

2023 UT App 96THE UTAH COURT OF APPEALS
ELIZABETH A. HOFFMAN,
Petitioner,
v.
LABOR COMMISSION, DELTA AIR LINES, NORTH RIVER INSURANCE
COMPANY, AND HARTFORD INSURANCE COMPANY,
Respondents.
Opinion
No. 20200184-CA
Filed August 24, 2023
Original Proceeding in this Court
David J. Holdsworth, Attorney for Petitioner
Christin Bechmann and Rachel Konishi, Attorneys for
Respondents Delta Air Lines, North River Insurance
Company, and Hartford Insurance
Company
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
MORTENSEN, Judge:
¶1 Elizabeth A. Hoffman suffered a work-related injury that
resulted in multiple surgeries and chronic pain. Her doctors
prescribed her opioids and other medications. For many years,
Delta Air Lines (Delta) and its insurance carrier, Hartford
Insurance Company (Hartford; collectively, Respondents), paid
for these medications. But after a doctor hired by Hartford
performed a medical examination of Hoffman (an insurance
“defense exam”) and recommended weaning with professional
assistance, Respondents stopped paying for Hoffman’s
medications altogether and made no provision for weaning.
Hoffman v. Labor Commission
Hoffman initiated a formal adjudicative proceeding against
Respondents through the Utah Labor Commission (the
Commission), and a medical panel opined that a level of opioid
use lower than Hoffman had previously taken was historically
necessary. Regarding future expenses, the panel indicated that
Hoffman should undergo a formal weaning program to stop
using opioids or else reduce her opioid use to a certain lower level.
¶2 An administrative law judge (ALJ) ordered that
Respondents reimburse Hoffman for past expenses and follow the
panel’s recommendations in providing a weaning program and
covering the cost of the panel’s recommended lower opioid
dosage if complete weaning was unsuccessful. Upon review, the
Appeals Board of the Utah Labor Commission (the Board)
interpreted the ALJ’s decision as covering the lower opioid
dosage in the future without waiting for a weaning opportunity
to trigger the reduced coverage, though it indicated that
Respondents would be liable for the costs of a weaning program
if Hoffman elected to participate in one. It also modified the order
as to past expenses to cover only the dosages of opioids the panel
had indicated were “necessary.” Hoffman now seeks judicial
review of the Board’s decision. We conclude that the Board’s
decision concerning the compensability of Hoffman’s past and
future expenses for medications is supported by the medical
panel’s report and is therefore supported by substantial evidence.
Accordingly, we decline to disturb its decision.
BACKGROUND
¶3 Hoffman sustained a work-related traumatic back injury in
1986 while working for Western Airlines, which later merged
with Delta. For some thirty years, Hartford paid for Hoffman’s
industrial medical expenses and prescription medications.
During that time, Hoffman underwent five back surgeries. After
the last surgery in 2002, she had to stop working due to
20200184-CA 2 2023 UT App 96Hoffman v. Labor Commission
debilitating chronic back pain and pain in her right leg. Her
physicians prescribed opioid pain medication to treat her pain,
and she has taken these without cessation—though in varying
amounts—since 2002. Her doctors also prescribed
benzodiazepines, to treat the anxiety that Hoffman developed
after the injury, and Soma, a muscle relaxant.
¶4 In 2006, the parties entered into a stipulated settlement
wherein Hartford agreed “to continue paying reasonable medical
expenses related to the accepted injuries.”
¶5 In January 2016, Hartford required Hoffman to undergo a
defense exam with Dr. Deborah Mattingly. In short, Dr. Mattingly
recommended that Hoffman be weaned from her medications
under the supervision of a specialist. Soon thereafter, Hartford
stopped paying Hoffman’s medical and prescription expenses.
Initially, Hoffman’s private medical insurance paid for her
medications, but when it too stopped, she began paying for them
out of pocket.
¶6 Hoffman initiated a formal adjudicative proceeding
against Respondents. The ALJ first assigned to the case, Judge
Colleen Trayner, identified that the “only issues before the Court
[were] necessary medical care from 2016 to the present and
recommended medical care to treat [Hoffman’s] industrial . . .
condition.” Utah law dictates that an injured employee’s
“employer or the [employer’s] insurance carrier shall pay
reasonable sums for medical, nurse, and hospital services [and]
for medicines . . . necessary to treat the injured employee.” Utah
Code § 34A-2-418(1).
Judge Trayner’s Findings
¶7 Judge Trayner entered the following findings of fact:
20200184-CA 3 2023 UT App 96Hoffman v. Labor Commission
On January 12, 2016, [Hoffman] underwent [a
defense exam] with Dr. Mattingly. Dr. Mattingly
opined that the only recommended treatment is to
wean [Hoffman] from her opioids,
benzodiazepines[,] and Soma. Dr. Mattingly opined
that [Hoffman] requires a weaning from the opiates
under the supervision of an addiction or pain
specialist. This should not take more than six
months. Dr. Mattingly also recommends a regular
exercise program.
On March 29, 2016, Catherine Harmston,
FNP, filled out a Summary of Medical Evidence. . . .
Catherine Harmston opined that [Hoffman’s]
lumbar spine surgeries and opioid analgesics were
necessary to treat [Hoffman’s] 1986 industrial
injuries. Catherine Harmston recommends physical
therapy, consult with Dr. Nelson[,] and monthly
medication.
On January 15, 2018, Dr. Stoddard filled out
a Summary of Medical Evidence. Dr. Stoddard
opined that [Hoffman’s] opioid treatment was
necessary to treat her 1986 industrial injuries. Dr.
Stoddard recommends ongoing opioid treatment.
On January 29, 2018, Dr. Stoddard prescribed
[Hoffman] a [Bowflex] machine, therapeutic hot
tub[,] and housecleaning services every other week
as a result of [Hoffman’s] chronic back pain.
[Hoffman] underwent [a defense exam] with
Dr. Jiricko on October 9, 2018. On December 14,
2018, Dr. Jiricko provided an addendum. Dr. Jiricko
opined that he does not recommend a spinal cord
stimulator or surgical intervention. Dr. Jiricko
recommends weaning from the opioid medication.
20200184-CA 4 2023 UT App 96Hoffman v. Labor Commission
Dr. Jiricko notes that [Hoffman] requires a formal
inpatient detoxification and/or a 4-week [structured
intensive multidisciplinary program] . . . . [Hoffman]
requires a consultation with an addiction specialist
or psychiatrist. Dr. Jiricko recommends a robust
cognitive behavioral therapy training . . . and
psychiatric evaluation for anxiety and medication
management. Also, 10 to 12 sessions of physical
therapy for [Hoffman’s] right leg.
[Hoffman was] treated [by] Dr. Anden from
November 1, 2018[,] through January 9, 2019. . . . Dr.
Anden’s last medical care recommendation [was] to
continue [the] same medications [and] independent
home/gym exercise program[,] which includes
walking, back stretches, core strengthening, and
weight management. . . .
(Internal citations omitted.)
¶8 Judge Trayner then concluded that “[t]here is a dispute
among physicians regarding medical care after 2016 and
recommended medical care to treat [Hoffman’s] back condition.”
Accordingly, she ordered “that the issues of medical and
recommended medical care shall be referred to a medical panel
for consideration.” See Utah Admin. Code R602-2-2(A) (“A panel
will be utilized by the Administrative Law Judge where one or
more significant medical issues may be involved.”).
The Medical Panel’s Report
¶9 The medical panel’s report, issued in July 2019, stated the
following regarding past medical care:
20200184-CA 5 2023 UT App 96Hoffman v. Labor Commission
Q: Please past medical care since 2016 been
necessary to treat [Hoffman’s] 1986 industrial back
injury?[1]
A: The term “necessary” is . . . difficult to answer[,]
especially in the setting of chronic pain. It is not
considered medically necessary for her to continue
with her opioids, benzodiazepine[,] and Soma
because without those medications she would not
die[,] and in reality, the use of these medications
greatly increases her risk of death. However, her
pain and anxiety would increase. From 2002–2016,
she used excessive amounts of opioids at 440 mg of
oxycodone[,] and to take away all the opioids
quickly would be inhumane[,] and weaning would
be mentally and physically challenging. We have
had a difficult time deciding what is considered
“necessary” in trying to balance humane treatment
given her 14 years of continuous excessive opioid
use with current medical standards for chronic pain
and the risks and benefits of the opioids,
benzodiazepine[,] and Soma.
We have decided that [Hoffman] “needed”
the 120 mg of OxyContin (extended release
oxycodone) a day. This amount is still over what is
recommended by CDC and ACOEM guidelines for
1. We recognize that the medical panel’s report phrased this
question confusingly. Judge Trayner’s memo to the medical panel
asked, “What past medical care since 2016 been [sic] necessary to
treat the Petitioner’s 1986 industrial back injury?” The panel’s
wording further muddies already murky waters. But regardless
of the wording, the panel understood that it was asked to
determine what past care was necessary between 2016 and the
time of the panel’s analysis.
20200184-CA 6 2023 UT App 96Hoffman v. Labor Commission
treatment of chronic pain[,] but it is improved from
the 270 mg of oxycodone she is currently using.
We believe the benzodiazepine and Soma are
clearly not medically necessary and are not
indicated to treat chronic pain. The oxycodone
30 mg 5X/day is excessive and not medically
indicated. There is no objective or subjective
evidence that these medications ever improved her
pain score or improved her function. In fact, her
pain score and function are unchanged from the
440 mg of daily oxycodone use compared to the
270 mg of daily oxycodone she currently uses.
¶10 The medical panel said the following regarding future
medical care:
Q: What medical care, if any, is recommended to
treat [Hoffman’s] 1986 industrial back medical
condition, including but not limited to medications,
spinal cord stimulator, [Bowflex] machine,
housecleaning and therapeutic hot tub?
A: We believe that Dr. Jiricko’s plan is the most
ideal. However, [Hoffman] has both psychologic
and physical dependence o[n] the opioids (this is
different [from] an opioid use disorder or opioid
addiction)[,] and she is very anxious about not
taking her medications. She is not psychologically
ready to stop taking opioids[,] and having her go to
treatment for the opioid dependence would not be
successful until she wants to get off opioids. If she is
unwilling to wean off her opioids, these are our
recommendations:
1. Wean down to 180 mg of morphine
equivalent dose a day (which is 90–120 mg
20200184-CA 7 2023 UT App 96Hoffman v. Labor Commission
oxycodone per day depending on [the] conversion
ratio chosen). This can be a variation of OxyContin
only, oxycodone only[,] or a combination of
OxyContin and oxycodone.
Or
2. Switch to Buprenorphine 16 mg or less a
day.
Regardless of which path she and her
physician decide, she needs to stop using the
benzodiazepine and Soma along with her opioid.
There are better medications to treat her anxiety and
sleep disorder with less risk profile. She would
benefit from a [p]sychiatry evaluation to treat her
anxiety from the chronic pain and [a] [s]leep
specialist evaluation to treat her sleep disorder from
chronic pain.
We do not believe she would benefit from the
spinal cord stimulator to improve function or
reduce medication. . . .
We do not believe a [Bowflex] machine is
medically indicated. Exercise is indicated and
recommended, but virtually all forms of exercise are
helpful (walking, swimming, core strength, yoga,
etc.), but a specific brand name device is not needed.
We do not believe she would benefit from a
hot tub. There is no scientific evidence to suggest hot
tubs improve function or help chronic low back
pain.
We do not believe housekeeping is medically
necessary for her low back pain. She currently
20200184-CA 8 2023 UT App 96Hoffman v. Labor Commission
chooses to employ housekeeping services, but her
current yard and animal care have similar physical
requirements. Having housekeeping has not
improved her function[,] nor has it allowed her to
reduce her opioid use.
¶11 Hoffman filed a response containing multiple objections to
the medical panel’s report. Respondents filed a response in
support of the medical panel’s report. Meanwhile, the case was
transferred to another ALJ, Judge Steven J. Rammell.
Judge Rammell’s Order
¶12 Judge Rammell issued findings of fact, conclusions of law,
and an order in October 2019, wherein he found “that the [medical
panel report] is the product of thorough, collegial, and impartial
review, both of the entire medical record and of [Hoffman]
herself,” and that the medical panel was “qualified to opine on
[Hoffman’s] historical and future medical treatment.”
Accordingly, Judge Rammell “adopt[ed] and admit[ted] into
evidence the [m]edical [p]anel [r]eport and conclude[d] that the
panel’s findings [were] reliable and its treatment
recommendations appropriate.”
¶13 Regarding future expenses, Judge Rammell ruled that
Respondents are “obligated to pay for the expenses associated
with the recommended future treatment” according to “the
medical panel’s recommendations, both as they mirror those of
Dr. Jiricko and the two proposed alternative options should
[Hoffman] prove unwilling or unable to wean off her opioids.”
¶14 On the topic of past expenses, Judge Rammell grappled
with the “rather unique issue” of “whether a carrier is obligated
to pay for past medical expenses that have since been found
unnecessary” based on the “medical panel’s conclusions that the
benzodiazepine, Soma, and the previous dosages of opioids were
20200184-CA 9 2023 UT App 96Hoffman v. Labor Commission
not medically necessary.” On this question, Judge Rammell stated
that “the appropriate course and timeframe for treatment of a
petitioner’s industrial injuries may be determined by the
petitioner’s treating physicians, but a respondent’s liability for
such treatment does not extend beyond the care recommended in
an adopted medical panel report.” However, Judge Rammell
determined that “[Hoffman] properly relied on her treating
physician’s recommendations at the time” and “[a] medical
panel’s later conclusions of excessive dosage should not be
retroactively applied to punish [Hoffman] for following her
physician’s advice prior to the panel’s involvement.” 2
2. In reaching this conclusion, Judge Rammell relied on two
previous decisions by the Board: Pakalani-Raber v. Convergys Corp.,
No. 16-0316, 2017 WL 6818274, at *3 (Utah Labor Comm’n Dec. 5,
2017) (determining that a petitioner “properly relied on her
treating physician’s recommendations regarding opioid pain
medication as awarded to her through the adjudication of her
previous claim” and concluding that “[t]o deny a claim for
medical benefits that were deemed necessary by a medical panel
in the previous case after the fact would not be appropriate”), and
Tacy v. Kennecott, No. 15-0370, 2018 WL 6018509, at *1–2 (Utah
Labor Comm’n Sept. 11, 2018) (reciting how, after a medical panel
modified its earlier opinion to no longer recommend a
benzodiazepine and to recommend a lower dosage of opioid use
or complete weaning, an ALJ “relied on the panel’s clarified
opinion and awarded [the petitioner] the past expenses for opioid
and benzodiazepine medications along with the cost of a program
to wean him from such medications”). Judge Rammell
acknowledged that the decisions were not on all fours with
Hoffman’s case but stated that “the underlying principle[s]” of the
decisions “remain[] applicable” such that “[a] medical panel’s
later conclusions of excessive dosage should not be retroactively
(continued…)
20200184-CA 10 2023 UT App 96Hoffman v. Labor Commission
¶15 Judge Rammell then reached the following conclusions:
Here, a preponderance of the evidence
demonstrates that when [Hoffman] began taking
this combination of medications for which she now
seeks reimbursement, “. . . high dose opioid
prescriptions for chronic pain was the standard of
care” along with concurrent benzodiazepine use. In
contrast, only Dr. Stoddard has indicated that a
[Bowflex] machine is medically necessary for
[Hoffman], while Dr. Mattingly, Dr. Anden, and the
medical panel simply agree that regular exercise
would be beneficial to [Hoffman]. As such, the
Court finds that a preponderance of the evidence
demonstrates the potential benefits to [Hoffman] of
regular exercise, but there is no such preponderance
regarding the medical necessity of a [Bowflex]
machine specifically. Similarly, there is no
preponderance of evidence to support the medical
necessity of a spinal cord stimulator, hot tub, or
housekeeping service. . . . [B]ecause those courses of
treatment were not recommended by the medical
panel, and without an independent preponderance
of the evidence to support them, the Court does not
applied to punish [Hoffman] for following her physician’s advice
prior to the panel’s involvement.” We observe that the fact of a
previous medical panel report in both decisions is critical. Here
Hoffman’s past opioid use above the level the medical panel
deemed “necessary” was not based on a previous
recommendation by a medical panel. In Judge Rammell’s words,
“[A] respondent’s liability for . . . treatment does not extend
beyond the care recommended in an adopted medical panel
report.” Here, Respondents’ liability for Hoffman’s past medical
care does not extend beyond the medical panel’s determination as
to which portion of that care was necessary.
20200184-CA 11 2023 UT App 96Hoffman v. Labor Commission
find these treatments “necessary” and
Respondent[s] [are] not liable to cover those
expenses.
The Court therefore finds that [Hoffman] is
entitled to reimbursement for her out-of-pocket
expenses for the historical use of the previously-
recommended medications.
¶16 Hoffman then filed a “[m]otion for [r]eview as to certain
selected aspects” of Judge Rammell’s decision. Hoffman claimed
that the medical panel’s “conclusion as to the reasonableness or
necessity of [her] past use of [o]xycodone is somewhat unclear,
but given the Court’s decision, Ms. Hoffman asserts her historical
use of [o]xycodone should also be deemed compensable.” She
also stated, “Presumably, until Hartford indicates a willingness to
implement Dr. Jiricko’s and the panel’s recommendations (which
the Court adopted), Ms. Hoffman’s continuing use of
[OxyContin] should be compensable.” She thus requested that the
Board “clarify the compensability as to the continuing use of
[OxyContin] and doctors’ appointments related thereto.”
The Board’s Order
¶17 In February 2020, the Board issued an order modifying
Judge Rammell’s decision. In it, the Board stated the following:
Ms. Hoffman contends that Judge Rammell’s order
should be clarified to award her the cost of the
medication she is currently prescribed until the
point Delta is willing to pay for the program and the
other treatment described by the panel to wean her
from her dependence on opioids. After reviewing
Judge Rammell’s decision in light of the medical
evidence, the [Board] agrees with Ms. Hoffman that
the order and award of benefits is lacking in enough
20200184-CA 12 2023 UT App 96Hoffman v. Labor Commission
specificity to allow reasonable reliance upon the
order by the parties. . . . It appears that Judge
Rammell’s award of benefits to Ms. Hoffman is
based on the medical panel’s recommendations
even if he did not specify the treatment outlined by
the panel in the order.
The [Board] reads the panel’s conclusion on
the issue of future medical care as providing two
alternatives: first, the recommended weaning from
opioids; and second, the 180 mg of morphine
equivalent or 16 mg or less of buprenorphine per
day. The [Board] views the reason for alternatives to
be unimportant. Whether Ms. Hoffman hesitates to
begin the weaning program or whether Delta
somehow delays authorization for such program,
the panel outlined the necessary pain medication for
her work-related low-back condition.
With respect to Ms. Hoffman’s past medical
expenses—specifically the cost of her medication
prescribed by her treating physicians—the [Board]
finds that Delta is only liable for the amount
determined to be “necessary” by the medical panel:
120 mg of extended release oxycodone without the
benzodiazepine and Soma. The cases discussed by
Judge Rammell involve circumstances that are
distinct from the relatively simple issue in the
present matter. As the parties acknowledge in their
motions, Delta may stop payment for medical
treatment upon the recommendation from Dr.
Mattingly and assume the risk of liability if such
treatment is ultimately found to be necessary and
appropriate through adjudication before the
Commission. In Ms. Hoffman’s case, that appears to
be what took place with the exception that the panel
20200184-CA 13 2023 UT App 96Hoffman v. Labor Commission
determined less medication was necessary than
what had been prescribed by her treating
physicians. The panel’s opinion regarding necessary
medical treatment is persuasive as it represents a
thorough and well-reasoned assessment of Ms.
Hoffman’s condition and because it is the product
of collegial, impartial, and expert review of all of her
relevant medical history. Thus, Ms. Hoffman is only
entitled to the cost of past medical expenses
consistent with the panel’s conclusions regarding
what was necessary on an industrial basis.
(Internal footnote omitted.) In its order, the Board said,
The [Board] modifies the portion of Judge
Rammell’s order . . . related to past medical
expenses by awarding Ms. Hoffman only the cost of
medical care determined to be necessary by the
medical panel in this case. This includes the cost of
the medication found necessary by the panel unless
or until Ms. Hoffman undergoes the detoxification
program and accompanying therapy outlined by
the panel and Dr. Jiricko. Delta is liable for the cost
of such treatment . . . .
¶18 Hoffman now seeks judicial review of the Board’s decision.
ISSUES AND STANDARDS OF REVIEW
¶19 Hoffman asks us to determine whether the Board’s
findings of facts and conclusions of law with regard to her past
and future medical expenses were supported by substantial
evidence.
¶20 Utah law permits appellate courts to grant relief when a
party is “substantially prejudiced” by an error in the “final agency
20200184-CA 14 2023 UT App 96Hoffman v. Labor Commission
action resulting from formal adjudicative proceedings.” Utah
Code § 63G-4-403(1), (4). Our supreme court has explained that
the applicable statute “lists several categories of remediable errors
and implies a standard of review for some, but not all, of these
errors.” Provo City v. Utah Labor Comm’n, 2015 UT 32, ¶ 8, 345 P.3d
1242. For example, “a challenge to an administrative agency’s
finding of fact is reviewed for substantial evidence.” Id.; see Utah
Code § 63G-4-403(4)(g). But if substantial prejudice occurs
because “the agency has erroneously interpreted or applied the
law,” Utah Code § 63G-4-403(4)(d), “we employ one of our
established standards of review for mixed questions of law and
fact,” and “[t]he level of deference we afford to an agency’s
resolution of mixed questions varies depending upon the nature
of the mixed question under review,” Provo City, 2015 UT 32, ¶ 9.
Here, Hoffman alleges that “the particular conclusions at issue are
more ‘factual’ than ‘legal’ and, thus, should be reviewed under
the substantial evidence test.”
¶21 “A decision is supported by substantial evidence if there is
a quantum and quality of relevant evidence that is adequate to
convince a reasonable mind to support a conclusion.” Becker v.
Sunset City, 2013 UT 51, ¶ 10, 309 P.3d 223 (cleaned up). “In
conducting a substantial evidence review, we do not reweigh the
evidence and independently choose which inferences we find to
be the most reasonable.” Id. ¶ 21 (cleaned up). “Instead, we defer
to [an administrative agency’s] findings because when reasonably
conflicting views arise, it is the [agency’s] province to draw
inferences and resolve these conflicts.” Id. (cleaned up).
ANALYSIS
¶22 Hoffman asks us to review the Board’s order. She says she
“believes some of the [Board’s] decision[s] and conclusions are
sound, but she also asserts some of the [Board’s] decisions and
conclusions are questionable and erroneous.”
20200184-CA 15 2023 UT App 96Hoffman v. Labor Commission
¶23 First, Hoffman argues that the medical panel’s
determinations as to past and future treatment are problematic
because the panelists are not her treating physicians. Concerning
past expenses, Hoffman “asserts her treating physicians were
historically in the best position to make . . . judgment calls” about
“what kind of opioid pain medication and how much” was
appropriate for her “as they worked with Ms. Hoffman to get her
type and levels of prescription opioid pain medication properly
calibrated so she could function on a limited but stable basis.”
Regarding future treatment, Hoffman argues that a “medical
panel’s recommendations become problematic because members
of a panel are not the treating physicians and do not have any
history with the claimant and are not able to follow the claimant’s
response to any particular treatment.” Hoffman asserts that a
“treating physician is in the best position to make and implement
and monitor recommended future treatment.”
¶24 But the role of a medical panel is well settled by statute and
caselaw. Utah Code section 34A-2-601 establishes that “[a]n
administrative law judge may base the administrative law judge’s
finding and decision on the report of . . . a medical panel.” Utah
Code § 34A-2-601(2)(e)(i). Even if treating physicians are best
positioned to prescribe and adjust a treatment plan, this reality
would not render a medical panel’s conclusions and
recommendations legally impotent. Indeed, we have “note[d] that
a medical panel’s report alone can be enough to conclude that the
Commission’s determination was supported by substantial
evidence.” Morris v. Labor Comm’n, 2021 UT App 131, ¶ 17, 503
P.3d 519 (cleaned up), cert. denied, 509 P.3d 768 (Utah 2022). “After
all, the [applicable statute] expressly permits the Commission to
base its findings on a medical panel’s report, and we will not
question the Commission’s decision to do so where, as here, the
reports are thorough and prepared by neutral medical experts.”
Id. (cleaned up).
20200184-CA 16 2023 UT App 96Hoffman v. Labor Commission
¶25 Hoffman does not assert that the panel’s report was not
thorough or that it was not prepared by “neutral medical
experts.” Id. She does not take issue with the Board’s or Judge
Rammell’s findings about the reliability of the panel’s report. The
Board indicated that “[t]he panel’s opinion regarding necessary
medical treatment is persuasive as it represents a thorough and
well-reasoned assessment of Ms. Hoffman’s condition and
because it is the product of collegial, impartial, and expert review
of all of her relevant medical history.” And Judge Rammell
declared that “the [medical panel report] is the product of
thorough, collegial, and impartial review, both of the entire
medical record and of [Hoffman] herself” and “that the panel’s
findings [were] reliable and its treatment recommendations
appropriate.” We have no reason to disregard the panel’s
recommendations. “Accordingly, if the Commission’s decision is
supported by the medical panel reports, the substantial evidence
standard is satisfied.” Id.; see also Valdez v. Labor Comm’n, 2017 UT
App 64, ¶ 22, 397 P.3d 753, cert. denied, 400 P.3d 1046 (Utah 2017);
Hutchings v. Labor Comm’n, 2016 UT App 160, ¶ 32, 378 P.3d 1273,
cert. denied, 390 P.3d 720 (Utah 2017); Cook v. Labor Comm’n, 2013
UT App 286, ¶ 18, 317 P.3d 464. Again, “in conducting a
substantial evidence review, we do not reweigh the evidence and
independently choose which inferences we find to be the most
reasonable.” Becker v. Sunset City, 2013 UT 51, ¶ 21, 309 P.3d 223(cleaned up). Therefore, we reject Hoffman’s arguments that the
medical panel’s determinations regarding past and future
treatment are problematic merely because the panelists are not
her treating physicians. 3
3. Hoffman also takes issue with statements in the medical panel’s
report concerning the medical or clinical findings that supported
the panel’s assessment. She argues that the medical panel’s
(continued…)
20200184-CA 17 2023 UT App 96Hoffman v. Labor Commission
¶26 In her reply brief, Hoffman attempts to present her
argument differently, saying she “recognizes that [the
Commission’s] current process to resolve medical controversies is
to use medical panels and that the current state of the law is that,
where [the Commission’s] decision is supported by a medical
panel report, the Commission can satisfy the substantial evidence
test.” She asserts that this legal landscape “simply frames the
inquiry in the instant appeal as being whether the [Board’s]
findings and decision on the issue . . . are supported by the
medical panel report. If they are not, the [Board’s] findings are not
supported by substantial evidence.” Thus, Hoffman presents her
argument as claiming “not that the [Board] should have allowed
higher dosages of opioid pain relief medication, but that, as to the
level of opioids which the medical panel found necessary and
determination that her pain level or function did not change when
her dosage was increased or decreased was not accurate.
Additionally, she disagrees with the medical panel about
what level of opiates are necessary, saying that the panel declared
the level of pain medication she was taking was “not really
necessary because the later reduction of such prescription opioid
pain medication did not kill her.” She counters, “If life or death
were to be the gauge for whether a medical treatment is
reasonable (and whether the expense for such treatment is a
‘reasonable’ medical expense), insurance companies wouldn’t
have to pay anything.”
But we do not address the medical panel’s findings directly
because Hoffman has not presented for our review the question
of whether the Board abused its discretion in adopting the
medical panel’s report. See Bade-Brown v. Labor Comm’n, 2016 UT
App 65, ¶¶ 8–10, 372 P.3d 44. And, as noted, “if the Commission’s
decision is supported by the medical panel reports, the substantial
evidence standard is satisfied.” Morris v. Labor Comm’n, 2021 UT
App 131, ¶ 17, 503 P.3d 519, cert. denied, 509 P.3d 768 (Utah 2022).
Therefore, Hoffman’s arguments on these points are unavailing.
20200184-CA 18 2023 UT App 96Hoffman v. Labor Commission
appropriate (after a structured weaning down process, at least
going forward), whether Hartford should be paying for such
lower level of opioid use.”
I. Past Expenses
¶27 On the topic of past expenses, Hoffman declares that “[t]he
panel offered no opinion as to the compensability of such pain
medication which Ms. Hoffman has been prescribed and used in
the past.” 4 Hoffman is incorrect. While the panel did not use the
4. On this point, Hoffman asserts that Judge Rammell
appropriately “found that ‘[Hoffman] properly relied on her
treating physicians’ recommendations at the time’ and, then
discussing and applying the precedents in [the two Board
decisions discussed supra note 2] and adopting the same
reasoning to govern his decision on the issue, he decided: ‘A
medical panel’s later conclusions of excessive dosage should not
be retroactively applied to punish [Hoffman] for following her
physician’s advice prior to the panel’s involvement.’” We do not
opine further on Judge Rammell’s analysis because the Board’s
decision is “the final agency action resulting from formal
adjudicative proceedings” that has been presented to us for
judicial review. See Utah Code § 63G-4-403(1).
But we note that inasmuch as both Judge Rammell and the
Board relied on the medical panel in reaching different
conclusions about compensability, this is not the first time an ALJ
and the Board have disagreed in their reading of a medical panel
report. In YESCO v. Labor Commission, 2021 UT App 96, 497 P.3d
839, an ALJ relied on a medical panel report to determine that two
injuries an employee suffered “were degenerative and/or
congenital and not caused by a work-related activity.” Id. ¶ 8
(cleaned up). “On review, the [Board] read the medical panel’s
report differently than the ALJ did.” Id. ¶ 9 (cleaned up). “From
the [Board’s] perspective, the panel’s report medically causally
(continued…)
20200184-CA 19 2023 UT App 96Hoffman v. Labor Commission
word “compensable” related to its findings on what past medical
care was necessary, it did make findings on the topic, which the
Board properly relied on in determining the compensability of
Hoffman’s past care. As presented to the panel, the question of
what past care Hoffman needed was clearly a question of what
level of past care Respondents were liable for.
¶28 Hoffman herself acknowledges in her opening brief that,
“[t]o be sure, a workers’ compensation carrier can terminate
ongoing medical care and medications as being unreasonable or
unnecessary[5] . . . , but if a carrier does so before the Commission
connected [the employee’s] work activities to his” injuries. Id.(cleaned up). “Accordingly, the [Board] remanded the case to the
ALJ for further consideration,” and “[t]he ALJ awarded [the
employee] benefits on remand, largely echoing the [Board’s]
conclusions regarding medical causation.” Id. On judicial review,
this court highlighted that, “as the [Board] noted, [a] ‘clear
inference’ from the medical panel’s statement . . . , combined with
the other opinions in the record, support[ed] the [Board’s]
medical causation finding.” Id. ¶ 22. Thus, our conclusion that the
Board’s decision is supported by the medical panel’s report ends
our inquiry despite differences in interpretation of the medical
panel’s report between Judge Rammell and the Board.
5. Hoffman’s situation is somewhat unique in that the parties had
previously entered into a stipulation wherein Hartford agreed “to
continue paying reasonable medical expenses related to the
accepted injuries.” Until Dr. Mattingly’s defense exam, Hartford
paid for the medical treatments that Hoffman’s treating
physicians prescribed. In other words, for some thirty years,
Respondents indicated through their actions that the treatments
prescribed by Hoffman’s physicians were reasonable. After Dr.
Mattingly’s defense exam, Respondents presumably believed that
those treatments were no longer reasonable and ceased paying for
(continued…)
20200184-CA 20 2023 UT App 96Hoffman v. Labor Commission
authorizes it to do so, the carrier bears the risk of getting stuck
with the bill.” The Board stated that “[i]n Ms. Hoffman’s case, that
appears to be what took place” but that ultimately “the panel
determined less medication was necessary than what had been
prescribed by her treating physicians.” Of course, the risk
them. We are sympathetic to Hoffman in that her reliance on high
levels of opioids began and continued for some time with
Hartford’s apparent acceptance. And we note the unrebutted
assertion that, in Judge Rammell’s words, “when [Hoffman]
began taking this combination of medications for which she now
seeks reimbursement, ‘. . . high dose opioid prescriptions for
chronic pain was the standard of care’ along with concurrent
benzodiazepine use.” Accordingly, the medical panel could have
determined that Hoffman’s historic use of opioids was medically
necessary, and we would decline to disturb the Commission’s
decision if it had relied on such a conclusion. But the panel did
not so conclude.
Furthermore, while we observe that, generally, what is
reasonable may include more than what is necessary, the question
of whether the language of the stipulation (“reasonable medical
expenses related to the accepted injuries”) and of the Utah Code
(“reasonable sums for medical, nurse, and hospital services [and]
for medicines . . . necessary to treat the injured employee”), see
Utah Code § 34A-2-418(1), align is not properly before us. And
Hoffman has not sought reimbursement through an enforcement
action of the parties’ stipulation or on a theory of equitable
estoppel by arguing that care deemed unnecessary by the Board
may still have been “reasonable” for the purposes of the parties’
stipulation or that she reasonably relied on the stipulation and
Respondents’ past acts. See Benge v. Cody Ekker Constr., 2019 UT
App 164, ¶ 20, 451 P.3d 667. We address only the question before
us: whether the Board’s findings regarding necessary medical
care were supported by substantial evidence. And based on the
Board’s proper reliance on the medical panel’s conclusions, the
Board’s findings are indeed supported by substantial evidence.
20200184-CA 21 2023 UT App 96Hoffman v. Labor Commission
associated with seeking medical care not predetermined to be
necessary flows in both directions. Just as an employer may be
“stuck with the bill” if the care is later determined to have been
necessary, so too may an employee face out-of-pocket expenses
that may be later determined to be non-reimbursable. Cf. Benge v.
Cody Ekker Constr., 2019 UT App 164, ¶ 20, 451 P.3d 667 (declining
to disturb the Commission’s denial of coverage for two knee
surgeries—despite an earlier surgery being covered—because a
medical panel found that the later surgeries were not related to or
caused by the empolyee’s workplace injury). We do not condone
Hartford’s actions of cutting off all payments for Hoffman’s
medical expenses or, more generally, the actions of some
employers or insurance carriers who leave injured employees to
pay costs out of pocket and seek redress. See Harding v. Industrial
Comm’n of Utah, 28 P.2d 182, 184 (1934) (“The insurance carrier . . .
ought not wait until full investigation has been made before
providing necessary care and treatment for injured
[employees].”). However, from the time of the first defense exam,
Hoffman was on notice that she might lose coverage for some or
even all of her opioid medications. She could have—at any point
afterward—gone through a weaning program and then sought
reimbursement for it from Hartford. She did not do so. At any
rate, when the panel was asked what past care was necessary to
treat Hoffman’s industrial injury, this was a question about what
level of past care Respondents were liable for.
¶29 Hoffman attempts to split hairs by asserting that the
medical panel determined what was necessary but not what was
compensable, but in this context, they are one and the same. Judge
Trayner’s order indicates that Hoffman “claimed entitlement to
. . . medical expenses” and that the “only issues before the Court
[were] necessary medical care from 2016 to the present and
recommended medical care to treat [Hoffman’s] industrial . . .
condition.” Her memo to the medical panel made it clear that she
was referring the case to the panel to settle the disputes on these
20200184-CA 22 2023 UT App 96Hoffman v. Labor Commission
two questions. And the medical panel’s report cannot be fairly
interpreted as opining on any other topic than the care necessary
for Hoffman that she is entitled to coverage for. Given these facts
and the statutory backdrop that an “employer or the [employer’s]
insurance carrier shall pay reasonable sums for medical, nurse,
and hospital services [and] for medicines . . . necessary to treat the
injured employee,” Utah Code § 34A-2-418(1), Hoffman’s attempt
to paint the panel’s findings on past care as distinct from findings
on compensability is unavailing.
¶30 The Board’s decision is supported by the medical panel’s
report, so it is therefore supported by substantial evidence. See
Morris v. Labor Comm’n, 2021 UT App 131, ¶ 17, 503 P.3d 519, cert.
denied, 509 P.3d 768 (Utah 2022). We acknowledge that the medical
panel’s report is not the picture of clarity—particularly
concerning past care, about which the panel introduces
unnecessary confusion by using present and future tense
verbiage. But the report definitively states that the panel has
“decided that [Hoffman] ‘needed’ the 120 mg of OxyContin
(extended release oxycodone) a day.” It also states that “the
benzodiazepine and Soma are clearly not medically necessary and
are not indicated to treat chronic pain” and that “[t]he oxycodone
30 mg 5X/day is excessive and not medically indicated.” The
Board’s findings are consistent with these: “With respect to Ms.
Hoffman’s past medical expenses[,] . . . the [Board] finds that
Delta is only liable for the amount determined to be ‘necessary’
by the medical panel: 120 mg of extended release oxycodone
without the benzodiazepine and Soma.” Therefore, the Board’s
findings satisfy the substantial evidence standard. See id.(“Accordingly, if the Commission’s decision is supported by the
medical panel reports, the substantial evidence standard is
satisfied.”).
20200184-CA 23 2023 UT App 96Hoffman v. Labor Commission
II. Future Medication Expenses
¶31 We next decide whether the Board’s determination
regarding the compensability of future medications is supported
by substantial evidence.
¶32 The Board stated that it “reads the panel’s conclusion on
the issue of future medical care as providing two alternatives:
first, the recommended weaning from opioids; and second, the
180 mg of morphine equivalent or 16 mg or less of buprenorphine
per day.” This much is clearly supported by the medical panel’s
report:
We believe that Dr. Jiricko’s plan is the most
ideal. . . . If [Hoffman] is unwilling to wean off her
opioids, these are our recommendations:
1. Wean down to 180 mg of morphine
equivalent dose a day (which is 90–120 mg
oxycodone per day depending on [the] conversion
ratio chosen). This can be a variation of OxyContin
only, oxycodone only[,] or a combination of
OxyContin and oxycodone.
Or
2. Switch to Buprenorphine 16 mg or less a
day.
Regardless of which path she and her
physician decide, she needs to stop using the
benzodiazepine and Soma along with her opioid.
Because the Board’s conclusion on this point is supported by the
medical panel’s report, it is supported by substantial evidence. See
Morris v. Labor Comm’n, 2021 UT App 131, ¶ 17, 503 P.3d 519, cert.
denied, 509 P.3d 768 (Utah 2022).
20200184-CA 24 2023 UT App 96Hoffman v. Labor Commission
¶33 The Board further stated that it “views the reason for
alternatives to be unimportant.” It said, “Whether Ms. Hoffman
hesitates to begin the weaning program or whether Delta
somehow delays authorization for such program, the panel
outlined the necessary pain medication for her work-related low-
back condition.” At first glance, it may appear that the Board
diverges from the panel’s recommendation that Respondents
provide Hoffman with an opportunity to wean by implicitly
deciding that the alternative options for coverage below
Hoffman’s current medication levels engage immediately.
However, the Board is clear that Respondents are still liable for
covering the costs associated with a weaning program if Hoffman
engages in one, adding a footnote stating, “[I]f, as Ms. Hoffman
seems to imply, she wants to undergo the detoxification program
with accompanying therapy recommended by the panel but Delta
delays in paying for it, Ms. Hoffman can seek to enforce the award
of the cost of such treatment through the courts.” Accordingly, the
Board’s conclusions about the compensability of future
medication expenses are supported by the medical panel’s report
and are therefore supported by substantial evidence. Id.¶34 As to Hoffman’s future use of benzodiazepine and Soma,
the Board impliedly denies future coverage of these medications
in line with the medical panel’s recommendations. However, the
panel also referred to other medications: “There are better
medications to treat her anxiety and sleep disorder with less risk
profile.” The Board’s decision does not deny these other
medications, so it affirmed Judge Rammell’s ruling in this respect.
Judge Rammell ruled that Respondents are “obligated to pay for
the expenses associated with the recommended future treatment”
according to “the medical panel’s recommendations,”
presumably including this recommendation. So, while
Respondents are not liable for the future cost of benzodiazepine
and Soma, they are responsible for the cost of more-effective,
20200184-CA 25 2023 UT App 96Hoffman v. Labor Commission
lower-risk medications to treat Hoffman’s anxiety and sleep
disorder.
III. Other Treatments
¶35 Hoffman asserts that expenses for “additional medical
treatment modalities,” including a home exercise machine and
housekeeping, are reasonable. On this point, the Board affirmed
Judge Rammell’s decision that stated,
[A] preponderance of the evidence demonstrates
the potential benefits to [Hoffman] of regular
exercise, but there is no such preponderance
regarding the medical necessity of a [Bowflex]
machine specifically. Similarly, there is no
preponderance of evidence to support the medical
necessity of a spinal cord stimulator, hot tub, or
housekeeping service. Thus, . . . because those
courses of treatment were not recommended by the
medical panel, and without an independent
preponderance of the evidence to support them, the
Court does not find these treatments “necessary”
and Respondent[s] [are] not liable to cover those
expenses.
¶36 The Board’s denial of coverage for these other treatments
is supported by the medical panel’s recommendations:
We do not believe she would benefit from the spinal
cord stimulator to improve function or reduce
medication. . . .
We do not believe a [Bowflex] machine is
medically indicated. Exercise is indicated and
recommended, but virtually all forms of exercise are
helpful (walking, swimming, core strength, yoga,
etc.), but a specific brand name device is not needed.
20200184-CA 26 2023 UT App 96Hoffman v. Labor Commission
We do not believe she would benefit from a
hot tub. There is no scientific evidence to suggest hot
tubs improve function or help chronic low back
pain.
We do not believe housekeeping is medically
necessary for her low back pain. She currently
chooses to employ housekeeping services, but her
current yard and animal care have similar physical
requirements. Having housekeeping has not
improved her function[,] nor has it allowed her to
reduce her opioid use.
Because the Board’s conclusions are supported by the medical
panel’s report, they are supported by substantial evidence. See
Morris v. Labor Comm’n, 2021 UT App 131, ¶ 17, 503 P.3d 519, cert.
denied, 509 P.3d 768 (Utah 2022).
¶37 But again, the Board’s decision did not deny other
treatments recommended by the medical panel or ordered by
Judge Rammell. Judge Rammell ruled that Respondents are
“obligated to pay for the expenses associated with the
recommended future treatment” according to “the medical
panel’s recommendations.” The panel recommended “a
[p]sychiatry evaluation to treat [Hoffman’s] anxiety from the
chronic pain and [a] [s]leep specialist evaluation to treat her sleep
disorder from chronic pain.” The panel also stated, more
generally, that as to future care, “Dr. Jiricko’s plan is the most
ideal.” Dr. Jiricko’s plan included recommendations for “a robust
cognitive behavioral therapy training . . . and psychiatric
evaluation for anxiety and medication management. Also, 10 to
12 sessions of physical therapy for [Hoffman’s] right leg.”
Accordingly, all of these treatments were impliedly
recommended by the medical panel, ordered by Judge Rammell,
and approved by the Board. So Respondents are responsible for
20200184-CA 27 2023 UT App 96Hoffman v. Labor Commission
the costs associated with these other treatments, if Hoffman
undergoes them.
CONCLUSION
¶38 The Board’s decision is supported by substantial evidence.
Accordingly, we decline to disturb it.
20200184-CA 28 2023 UT App 96