Fastenal and Phoenix Insurance v. Labor Commission, 040220 UTCA, 20180196-CA

Docket Nº:20180196-CA
Opinion Judge:MORTENSEN, JUDGE.
Party Name:Fastenal and Phoenix Insurance, Petitioners, v. Labor Commission and Ronald Stone, Respondents.
Attorney:Mark R. Sumsion and Lori L. Hansen, Attorneys for Petitioners Phillip B. Shell, Attorney for Respondent Ronald Stone
Judge Panel:Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.
Case Date:April 02, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 53

Fastenal and Phoenix Insurance, Petitioners,

v.

Labor Commission and Ronald Stone, Respondents.

No. 20180196-CA

Court of Appeals of Utah

April 2, 2020

Original Proceeding in this Court

Mark R. Sumsion and Lori L. Hansen, Attorneys for Petitioners

Phillip B. Shell, Attorney for Respondent Ronald Stone

Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.

OPINION

MORTENSEN, JUDGE.

¶1 Having concluded that putting the pedal to the metal repeatedly for up to eleven hours a day while driving semi-trucks for Fastenal caused Ronald Stone's foot ulcer, the Labor Commission determined that Stone was entitled to workers' compensation benefits. Fastenal asserts that the Commission violated its right to due process in several ways, most significantly by omitting certain pieces of evidence from the medical panel's (Panel) consideration in its determination of medical causation. Fastenal also contends that the Commission erred in determining legal causation. We decline to disturb the Commission's order.

BACKGROUND1

¶2 From April 2013 to July 2014, Stone worked for Fastenal driving semi-trucks that operated on a manual transmission with fifteen gears. Stone's work schedule included driving for eleven hours per day to make deliveries in various cities throughout the country. During one of his driving trips, Stone discovered a pressure ulcer on the heel of his left foot. Stone's doctor opined that Stone's significant hours driving caused the ulcer and treated it with cleanings and bandages for several months.

¶3 Stone brought a claim for workers' compensation benefits for his medical expenses and temporary total disability. During discovery, another doctor designated by Fastenal (Doctor) diagnosed Stone with peripheral neuropathy, concluded that the condition had existed for seven-and-a-half years, and opined that Stone's driving did not cause the pressure ulcer. A biomechanical expert (Expert) retained by Fastenal issued a report in which Expert determined that the semi-truck clutch required sixty-seven pounds of pressure to be fully engaged. The report also explained that this required force was more than that required to operate the clutch of consumer vehicles such as a Mini Cooper, a Ford F-150, and a Jeep Wrangler. After assessing Expert's report, Doctor still opined in a second letter that Stone's injury was not work-related. In coming to this opinion, Doctor explained that the pressure of engaging the semi-truck clutch "would be much less than what would be expected with walking" and concluded that "[t]his would be considered a normal activity of daily living and not an industrial exposure." (Emphasis added.) On April 6, 2015, Stone underwent surgery on his left foot to reconstruct a rigid cavus deformity.[2]

¶4 Thereafter, a hearing was held at which Fastenal presented testimony from Expert. In relevant part, Expert's testimony outlined the same information regarding pounds of force used in engaging a semi-truck clutch as compared to the force required to engage the clutch of the assortment of consumer vehicles. His testimony at the hearing, however, also included a comparison of force among driving the semi-truck, standing, and walking. Expert explained that the latter two activities imposed more force, suggesting that Stone could have developed the ulcer from one of these ordinary daily activities. The standing-walking-driving-comparison testimony was not in Expert's written report.

¶5 For his part, Stone testified about driving the semi-trucks. In pertinent part, he testified about how he used his left foot to engage the clutch, saying, "I would use the instep 60% of the time and use the ball of my foot 40% of the time." Stone also testified about his April 6, 2015 surgery. The medical records regarding the surgery were not provided at the hearing.

¶6 After the hearing, the administrative law judge (Initial ALJ) who presided over the hearing retired, and a new administrative law judge (Replacement ALJ) was assigned to the case. The Replacement ALJ issued an interim order, concluding that legal causation had been proven and referring the matter to the Panel to determine medical causation. The order did not reference Expert's testimony about the walking-standing-driving comparison of force.

¶7 Fastenal then filed an interlocutory motion for review with the Commission. In its motion, Fastenal argued that the Replacement ALJ's conclusion regarding legal causation was incorrect, and Fastenal sought the inclusion of the omitted evidence: Expert's full testimony, specifically the amount of force exerted on an individual's feet while standing and walking, and the medical records related to the surgery. Stone agreed that the evidence should be included. Reasoning that Fastenal could renew its objection "if necessary depending on the specifics of the [P]anel's report," the Commission dismissed Fastenal's motion in its entirety. The evidence was never provided to the Panel for its consideration of medical causation.

¶8 The Panel assessed the evidence provided to it and issued its report. In it, the Panel noted that Stone suffered from a preexisting condition of peripheral neuropathy, which meant "he had a loss of protective sensation in his foot" and "was 7 times more likely to suffer a foot ulcer than the general population." The Panel also noted that Stone "underwent surgery in April 2015 to help with foot realignment." Ultimately, the Panel determined that operating the semi-truck clutch medically caused Stone's pressure ulcer: "This repetitive pressure resulted in micro trauma and eventually ulceration secondary to [Stone's] known peripheral neuropathy." No party objected to the Panel's report. In the absence of any objection, the Replacement ALJ adopted the Panel's report. The Replacement ALJ then issued updated findings, conclusions, and an order.

¶9 While Fastenal did not file an objection to the Panel's report, Fastenal did file a motion asking the Commission to direct the Panel to review Expert's testimony and the medical documentation of Stone's surgery. In support, Fastenal included Doctor's report concluding that the walking-standing-driving comparison of force showed that pushing the semi-truck clutch would not have caused Stone's ulcer. Doctor also opined that the surgery was not work-related, as it was to address the cavus deformity. The Commission denied Fastenal's motion and upheld the Replacement ALJ's order, awarding Stone the benefits. In its order, the Commission pointed out that the Panel was aware of Stone's April 2015 surgery, and the Commission assessed Expert's testimony regarding force.

¶10 Fastenal now seeks judicial review.

ISSUES AND STANDARDS OF REVIEW

¶11 There are two issues for us to decide. First, we consider whether the Commission properly determined legal causation, which we review for correctness. Provo City v. Utah Labor Comm'n, 2015 UT 32, ¶ 17, 345 P.3d 1242 ("[W]e review the law applied to these facts for correctness.").

¶12 Then, we review whether the Commission violated Fastenal's right to due process. "Constitutional issues, including questions regarding due process, are questions of law that we review for correctness." Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 47, 299 P.3d 990 (cleaned up).

ANALYSIS

¶13 In order to obtain workers' compensation benefits, it is incumbent upon a claimant to prove that his or her injury occurred by accident and arose out of and in the course of his or her employment. Utah Code Ann. § 34A-2-401(1) (LexisNexis 2019).3...

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