Gamez v. Utah Labor Comm'n

• Citation: 511 P.3d 1145
• Decision Date: 26 May 2022
• Docket Number: 20200625
• Parties: Luis G. GAMEZ, Petitioner, v. UTAH LABOR COMMISSION, B & S Construction, and Workers Compensation Fund, Respondents.
• Court: Utah Supreme Court

511 P.3d 1145

Luis G. GAMEZ, Petitioner,

v.UTAH LABOR COMMISSION, B & S Construction, and Workers Compensation Fund,¹ Respondents.

No. 20200625

Supreme Court of Utah.

Heard September 17, 2021

Filed May 26, 2022

Virginius Dabney, St. George, Stony V. Olsen, Moroni, for petitioner

Floyd W. Holm, St. George, for respondents B & S Construction and Workers Compensation Fund

Christopher C. Hill, Salt Lake City, for respondent Utah Labor Commission

Justice Petersen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas^* , and Justice Pearce joined.

Justice Petersen, opinion of the Court:

INTRODUCTION

¶1 Luis G. Gamez² sought workers’ compensation benefits after he injured his left shoulder and low back in an industrial accident. Gamez's employer and its workers’ compensation carrier accepted liability for Gamez's left-shoulder injury, but contested the compensability of his low-back injury. The administrative law judge (ALJ) assigned to the case appointed a medical panel to resolve the dispute. She appointed Dr. Jeremy Biggs, a board-certified occupational medicine physician, to serve as the panel chair. As chair, Dr. Biggs selected an orthopedic specialist to serve with him on the panel.

¶2 Gamez objected to the ALJ's appointment of Dr. Biggs and moved for interlocutory review of this decision. He argued that Dr. Biggs should be disqualified because he had a conflict of interest and because he did not specialize in low-back conditions. The Labor Commission Appeals Board (the Board) rejected Gamez's objections. It determined that Gamez had not made the requisite showing that Dr. Biggs had an "actual bias." And it concluded that Dr. Biggs could properly serve on the panel even if he was not a specialist because a medical panel need have only one member who specializes in the condition at issue, and that requirement was satisfied by the orthopedic specialist.

¶3 Ultimately, the medical panel concluded that the accident had temporarily aggravated Gamez's low back but had not caused permanent injury. The ALJ accepted the panel's conclusions. And the Board affirmed the ALJ's decision.

¶4 Gamez petitioned for review in the court of appeals, which certified the matter to us. Gamez argues that Dr. Biggs should have been disqualified from the medical panel due to a conflict of interest, and he asks us to overrule the "actual bias" standard used by the Board to evaluate such claims. Gamez also asserts that the Workers’ Compensation Act requires all members of a medical panel to be specialists in the condition at issue, so Dr. Biggs also should have been removed from the panel because he does not specialize in low-back injuries. Finally, Gamez appeals the outcome of the Labor Commission proceeding, contesting the conclusion that his low back had "returned to baseline" when his back had never returned to the condition it was in prior to the accident.

¶5 We agree with the Board that the Workers’ Compensation Act requires only one member of a medical panel to specialize in the condition at issue. So, even accepting Gamez's characterization of Dr. Biggs as a generalist who does not specialize in low-back injuries, this is not a basis to disqualify him from the medical panel here because there is no dispute that the other member of the panel qualifies as such a specialist.

¶6 However, we agree with Gamez that the actual bias standard applied by the Board to resolve his conflict-of-interest objection does not comport with the requirements of the statute. We hold that where a medical panelist's impartiality could reasonably be questioned, the requirement of an impartial medical evaluation has not been met. Accordingly, we reverse this portion of the Board's dismissal of Gamez's interlocutory objection. And we remand to the Board for reconsideration of this objection under this clarified legal standard.

¶7 Because we remand on this basis, we do not resolve Gamez's claim that Dr. Biggs had a conflict of interest or that the Board wrongly accepted the ALJ's conclusion that Gamez's low back had returned to baseline.

BACKGROUND³

¶8 Gamez was injured in a rollover automobile accident while employed as a subcontractor for B & S Drywall, Inc. (B & S).⁴ At the time of the accident, Workers Compensation Fund (WCF) served as the workers’ compensation carrier for B & S.

¶9 Gamez was initially treated in a hospital emergency room for injuries to his left shoulder, left ankle, and head. He later sought care for ongoing pain in his shoulder and low back.

¶10 Gamez subsequently pursued workers’ compensation benefits—including permanent partial disability benefits and medical expenses—for the injuries to his left shoulder and low back. WCF accepted Gamez's shoulder-related claim but contested his low-back claim, arguing that he "suffered preexisting or independent medical problems that caused any disability" related to his low back.

¶11 Because of this dispute, the ALJ referred the matter to a medical panel. See UTAH ADMIN. CODE r. 602-2-2(A) (LexisNexis 2021) ("A panel will be utilized by the Administrative Law Judge where one or more significant medical issues may be involved.").⁵ She appointed Dr. Jeremy Biggs, a board-certified occupational and environmental medicine physician, to serve as the panel chair.⁶ Among other appointments, Dr. Biggs was affiliated with the Rocky Mountain Center for Occupational and Environmental Health (RMCOEH).

¶12 The ALJ directed Dr. Biggs to select "specialists [he] deem[ed] appropriate" to assist in his evaluation of the claims related to Gamez's low back, noting that "Adjudication Division policy requires that medical panels have at least two members on them."

¶13 Gamez objected to the appointment of Dr. Biggs because he was not an orthopedic specialist, citing statutory language requiring a medical panel to "consist of one or more physicians specializing in the treatment of the disease or condition involved in the claim." UTAH CODE § 34A-2-601(1)(c). In response, WCF conceded that Dr. Biggs may not qualify as a low-back specialist for purposes of subsection (1)(c), but argued that the statute requires only one member of the medical panel to be a specialist, so Dr. Biggs need not be disqualified on this basis. WCF then requested the ALJ to "direct Dr. Biggs to appoint at least one of the other member(s) he selects to be board certified in orthopedics," rather than "extend[ing] to Dr. Biggs the discretion to select specialists that he ‘deems appropriate.’ "

¶14 In response, the ALJ clarified to Dr. Biggs that "[d]ue to the medical issues in this matter," he should "select an orthopedic specialist as a member of the panel." Dr. Biggs ultimately contracted with Dr. Michael Henrie to serve on the panel with him. Dr. Henrie was a Doctor of Osteopathic Medicine with board certification in physical medicine and rehabilitation, and a subspeciality board certification in sports medicine.⁷

¶15 Gamez then sought interlocutory review of the ALJ's interim order appointing the medical panel, contending that (1) Dr. Biggs was unqualified to serve on the panel because, by statute, all panelists must be experts in the medical subject matter at issue, and Dr. Biggs was not; and (2) Dr. Biggs's affiliation with RMCOEH presented a conflict of interest because WCF provides funding to RMCOEH.

¶16 The Board denied Gamez's motion for interlocutory review. With respect to his challenge to Dr. Biggs's qualification to serve on the panel, it concluded that only "one panel member [need] have the requisite expertise in treating the injury or condition at issue." The Board noted that this has been standard practice "for many years" and remarked on the practical limitations of requiring "multiple physicians of every subspeciality or expertise to be available to participate on a Commission medical panel." With respect to Gamez's allegation that Dr. Biggs had a conflict of interest, the Board explained that "a potential for bias is insufficient grounds for disqualification" from serving on a medical panel, and because Gamez had not shown "actual bias," he could not prevail on his objection. The Board transferred the matter back to the ALJ to complete adjudication of Gamez's claims.

¶17 The medical panel, consisting of Dr. Biggs and Dr. Henrie, ultimately found that Gamez's work-related accident had only temporarily aggravated a preexisting low-back condition. And the panel concluded that any increase in Gamez's low-back symptoms "was no longer significantly related to the [work] injury by June 2017." The panel later clarified,

[w]hen we stated that Mr. Gamez's low back pain was no longer significantly related to the crash injury by June 2017, we intended that to indicate when he returned to baseline. After additional discussion, we feel it is medically reasonable to say Mr. Gamez's low back pain would be no longer significantly related to his work injury and therefore back to baseline by June 30, 2017.

¶18 The ALJ accepted the amended panel report over Gamez's renewed objection. And she denied Gamez's claim for permanent partial disability compensation.

¶19 Gamez then filed a motion for review with the Board, challenging the medical panel's conclusions and Dr. Biggs's participation on the panel. He requested that the matter be remanded for consideration by a new medical panel.

¶20 The Board rejected Gamez's argument and upheld the ALJ's decision. But one commissioner issued a concurrence arguing for reconsideration of the Board's practice of rejecting conflict-of-interest objections to medical panel appointments unless the party offers "evidence of actual bias." The commissioner noted that this actual bias standard was based on the Board's reading of Johnston v. Labor Comm'n , 2013 UT App 179, 307 P.3d 615.

¶21 Following the Board's denial of his motion for review, Gamez petitioned for review in the court of appeals. He reasserted his challenges to Dr. Biggs's impartiality and qualification to serve on the panel...