Foye v. Labor Comm'n, 20161039-CA

Decision Date21 June 2018
Docket NumberNo. 20161039-CA,20161039-CA
Citation428 P.3d 26
Parties Timothy FOYE, Petitioner, v. LABOR COMMISSION, Kodiak Fresh Produce, and Employers Assurance Company, Respondents.
CourtUtah Court of Appeals

Aaron J. Prisbrey, and Trevor C. Sanders, St. George, Attorneys for Petitioner

Ford G. Scalley and Alisha M. Giles, Salt Lake City, Attorneys for Respondents Kodiak Fresh Produce and Employers Assurance Company

Judge Jill M. Pohlman authored this Opinion, in which Judges Kate A. Toomey and David N. Mortensen concurred.



¶1 Timothy Foye asks us to review the Labor Commission’s decision denying his claim for benefits under Utah’s Workers’ Compensation Act. He alleges several errors related to the Commission’s Appeals Board’s (the Board) ultimate denial of benefits. In particular he argues that the Board exceeded its discretion when it overruled his objection to the medical panelists’ qualifications to render a medical opinion in his case. He also contends that the Commission’s rule R602-2-1(F)(3), which permits a respondent to require an employee to submit to a medical examination with the physician of the respondent’s choice, constitutes an unconstitutional delegation of legislative authority to a respondent. On that basis, he contends that neither the medical panel nor the Board can rely upon his employer’s physicians’ reports to dismiss his claim. Because we agree with Foye that the Board exceeded its discretion in overruling his objection regarding the medical panelists’ qualifications, we set aside the Board’s decision, with instructions to appoint a new medical panel to evaluate the issue of medical causation. However, we approve the Board’s decision that rule R602-2-1(F)(3) does not constitute an unconstitutional delegation of authority.


¶2 In May 2014, Foye sought compensation benefits related to a work accident that occurred in October 2013 while he was employed with Kodiak Fresh Produce (Kodiak) as a commercial truck driver. He alleged that he was exposed to "high levels of carbon monoxide" due to a carbon monoxide leak from his truck’s engine while he sat in the truck’s cab for approximately four hours, waiting for a blizzard to pass. He claimed that as a result of the carbon monoxide exposure

, he sustained permanent brain damage, resulting in "headaches, balance, vision & hearing problems, depression, anxiety, [and] problems concentrating."

¶3 A number of Foye’s treating physicians diagnosed him with carbon monoxide poisoning

. One of his physicians, an expert in hyperbaric medicine, opined that Foye suffered brain damage from the carbon monoxide exposure and predicted that the effects of the exposure "will affect him his entire life." Another of his treating physicians, however, opined that it was unlikely the exposure caused his symptoms and that Foye needed to see a psychiatrist to resolve his symptoms.

¶4 During the course of the proceedings, Kodiak required Foye to submit to two examinations with physicians it chose. One of the physicians, a neurologist, believed that Foye’s presentation was within the neuropsychological, not the neurological, realm of medicine; the other physician, a neuropsychologist, opined that the exposure was not "a probable cause or contribution" to the neuropsychological complaints Foye presented.

¶5 After an evidentiary hearing, the Administrative Law Judge (the ALJ) determined that there were "conflicting medical opinions as to whether [Foye’s] current condition ... [was] causally related to his work accident." The ALJ therefore referred Foye’s case to a medical panel. In her findings, the ALJ specifically identified the conditions involved in the claim: carbon monoxide poisoning

, and/or Foye’s potentially preexisting condition, which "may be pseudo-dementia." She requested the panel to, among other things, opine on whether Foye had a preexisting condition and, if so, whether the industrial accident aggravated, accelerated, or made symptomatic that preexisting condition.

¶6 The ALJ appointed Dr. Biggs, a board certified family medicine physician with experience in occupational medicine,1 as the medical panel chair, noting in her charging letter that Dr. Biggs had been "specifically chosen because of [his] experience on CO poisoning cases." The ALJ instructed Dr. Biggs to "select the specialists [he] deem[ed] appropriate" to assist in the evaluation. Dr. Biggs chose Dr. Watkins, a board certified neurologist, to be the second physician on the medical panel.

¶7 The medical panel reviewed Foye’s medical records and, in its report, extensively recited his medical history as well as his current complaints. The panel ultimately concluded that Foye did not suffer permanent neurological injuries

from the carbon monoxide exposure. Rather, it concluded that any "temporary discomfort" Foye experienced from the exposure "would have resolved within a few hours," and that he was "medically stable with regards to his industrial exposure by the time of his discharge from the emergency department" on the date of the accident. The panel also concluded that Foye had "experienced most of his current symptoms prior to the industrial accident" and that "the change in symptoms is more likely than not a progression of his inadequately treated psychiatric disease, rather than a manifestation of a delayed neurologic syndrome from a possible carbon monoxide exposure." As a result, the panel opined that the work accident caused no permanent impairment, that no medical care was currently necessary to treat the work condition, and that a permanent total disability was not established.

¶8 Foye objected to the medical panel report. He argued that the panel was not competent to conduct the evaluation, especially where neither of the panelists had expertise in offering psychiatric diagnoses, and he asserted that it failed to adequately address the carbon monoxide exposure

issue or evidence. He also argued that his treating physicians were more competent than the panel, and he provided rebuttal letters from two of his treating physicians, each of whom disagreed with the panel’s assessment. Dr. Weaver in particular disagreed with the panel’s conclusion that Foye had not suffered permanent brain damage as a result of the exposure, and he contended that "the medical panel has a superficial understanding of carbon monoxide poisoning and its long-term impact." Foye requested a hearing to address his concerns.

¶9 Rather than hold a hearing to resolve Foye’s objection, the ALJ sent the objection directly to the panel and requested that it report whether the objection changed its opinion. The panel responded that, after reevaluation, its conclusions "remain[ed] unchanged." In reaffirming its opinion, the panel addressed many of the comments raised as part of Foye’s objection, but it did not specifically address his objection to the panel’s competency to render an opinion in his case. Rather, the panel stated that it "did not offer a psychiatric diagnosis" but instead merely referred to Foye’s medical records documenting pre-accident diagnoses, and that it only "rendered a neurological opinion ... based on the evidence presented in [Foye’s] medical record and his interview and neurological examination by the medical panel."

¶10 Foye objected to the medical panel’s second report, again contending that the panel was not "competent to render an opinion" in his case. He asserted that "there is no evidence the panel doctors have ever treated anyone for carbon monoxide poisoning." And he noted that in the panel’s second report there was no attempt to challenge the assertion that the panel lacked competence to opine on his condition.

¶11 In her Findings of Fact, Conclusions of Law, and Order, the ALJ concluded that "the weight of the evidence" did not support Foye’s assertion that the accident medically caused his ongoing symptoms, and she rejected his claim. The ALJ also determined that Foye’s objections to the medical panel report were not well-taken, and the ALJ admitted the report into the record. In particular, the ALJ found the panel to be "qualified to review and consider the medical evidence and opinions in this case," that the panel’s evaluation was "well thought out" and "logical," that the panel’s ultimate opinion was supported by Kodiak’s experts and the case history, and that the panel "acted in an impartial and neutral manner." As to Dr. Biggs, the ALJ noted that he was "specifically selected because he has experience in treating CO poisoning," "[a]s identified by the Utah Labor Commission medical director on the Medical Panel Chair directory." That directory was not included in the record. The ALJ found that the other panelist, Dr. Watkins, was "a board certified neurologist."

¶12 Foye filed a motion for review with the Board. In that motion, he largely repeated the arguments he made in his objections to the medical panel reports. Among other things, he argued that his treating physicians’ opinions were superior to those of the medical panel, and that it lacked the knowledge and skill to opine on his carbon monoxide poisoning.

¶13 The Board affirmed the ALJ’s decision, adopting the ALJ’s findings of fact and making additional findings of fact material to the motion for review. In regard to Foye’s argument that the panel was not competent, the Board found that the panel "consisted of experts in occupational medicine and neurology, who are qualified to address the issue of medical causation as it pertains to [Foye’s] neurological and cognitive impairments." The Board also found the medical panel’s conclusions "persuasive on the issue of medical causation" and agreed with the ALJ that Foye had not established that the work accident was the medical cause of his current condition.

¶14 Foye filed a motion to reconsider with the Board. He argued for the first time that the opinions of Kodiak’s medical examiners were "unconstitutionally obtained" through an impermissible delegation of legislative authority by...

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