Foye v. Labor Commission

2018 UT App 124

THE UTAH COURT OF APPEALS

TIMOTHY FOYE,
Petitioner,
v.
LABOR COMMISSION, KODIAK FRESH PRODUCE,
AND EMPLOYERS ASSURANCE COMPANY,
Respondents.

Opinion
No. 20161039-CA
Filed June 21, 2018

Original Proceeding in this Court

Aaron J. Prisbrey and Trevor C. Sanders, Attorneys
for Petitioner
Ford G. Scalley and Alisha M. Giles, 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.

POHLMAN, Judge:

¶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
 Foye v. Labor Commission

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.

BACKGROUND

¶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

20161039-CA 2 2018 UT App 124
 Foye v. Labor Commission

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

1. The record is silent as to the nature of this experience.

20161039-CA 3 2018 UT App 124
 Foye v. Labor Commission

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

20161039-CA 4 2018 UT App 124
 Foye v. Labor Commission

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

20161039-CA 5 2018 UT App 124
 Foye v. Labor Commission

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 the
Commission to private third parties, such as insurance
companies. On this basis, he contended that he was prejudiced
by Kodiak’s medical examiner reports because the Board relied
on those reports to support the dismissal of his claim. The Board
rejected Foye’s non-delegation argument on its merits and
denied Foye’s request for reconsideration.

¶15 Foye now seeks judicial review.

ISSUES AND STANDARDS OF REVIEW

¶16 Foye argues that the Board abused its discretion by
refusing to sustain his objection to the medical panelists’
expertise and exclude the medical panel report on that basis.
“We review the [Board’s] refusal to exclude a medical panel
report [on the basis of an objection] under an abuse of discretion
standard, providing relief only if a reasonable basis for that
decision is not apparent from the record.” Bade-Brown v. Labor
Comm’n, 2016 UT App 65, ¶ 8, 372 P.3d 44 (quotation simplified).
In so doing, we will defer to the Board’s factual findings about
the issue so long as those findings are supported by substantial
evidence. See Danny’s Drywall v. Labor Comm’n, 2014 UT App
277, ¶ 11, 339 P.3d 624. “Substantial evidence is more than a
mere scintilla of evidence though something less than the weight

20161039-CA 6 2018 UT App 124
 Foye v. Labor Commission

of the evidence, and the substantial evidence test is met when a
reasonable mind might accept as adequate the evidence
supporting the decision.” Hutchings v. Labor Comm’n, 2016 UT
App 160, ¶ 30, 378 P.3d 1273 (quotation simplified). 2

¶17 Foye also argues that the medical examinations by
Kodiak’s physicians of choice were obtained as a result of the
Commission’s unconstitutional delegation of legislative
authority to Kodiak through its own rule. This is a question of
law, and we review the agency’s resolution of the question for
correctness. See Conley v. Department of Health, 2012 UT App 274,
¶ 7, 287 P.3d 452.

ANALYSIS

I. The Medical Panel

¶18 Foye argues that the Board exceeded its discretion by
admitting the medical panel report and dismissing his claim for
permanent total disability benefits where it “fail[ed] to appoint a
medical panel which is competent in the medical field of carbon
monoxide poisoning or neuropsychological diagnoses, in
violation of Utah statute.” He contends that there is no evidence
that either medical panelist specialized in the treatment of the
conditions at issue in his case—either carbon monoxide

2. Foye also argues, as an alternative basis for setting aside the
Board’s decision, that the Commission’s decision-making
process was unlawful. As evidence, he points to ex parte
communications between the ALJ and the medical panel, his
claims of medical panel bias, and his complaint regarding the
Commission’s instruction to the medical panel on the issue of
medical causation. As explained below, see infra ¶¶ 33–35,
because we conclude it was harmful error to admit the medical
panel report over Foye’s objections to the medical panelists’
expertise and ultimately instruct the appointment of a new panel
on that basis, we do not address this argument.

20161039-CA 7 2018 UT App 124
 Foye v. Labor Commission

poisoning or preexisting neuropsychological conditions, such as
pseudo-dementia—as required by Utah Code section 34A-2-601.
See Utah Code Ann. § 34A-2-601(1)(c) (LexisNexis 2015)
(providing that “[a] medical panel appointed . . . shall consist of
one or more physicians specializing in the treatment of the
disease or condition involved in the claim”). As a result, he
contends that the medical panel’s report was without
foundation, and he requests that we set aside the Board’s
dismissal of his claim and instruct the Commission to convene a
new medical panel with physicians specializing in the treatment
of his condition.

¶19 Foye’s argument requires us to evaluate whether the
Board exceeded its discretion in its resolution of his objection
and by ultimately admitting the medical panel report. Utah
Code section 63G-4-403 provides that an appellate court “shall
grant relief only if, on the basis of the agency’s record, it
determines” that the agency action constituted “an abuse of the
discretion delegated to the agency by statute” and that the
“person seeking judicial review has been substantially
prejudiced” as a result. Id. § 63G-4-403(4)(h)(i) (2016); see also id.
§ 63G-4-403(4)(g). See generally Columbia HCA v. Labor Comm’n,
2011 UT App 210, ¶¶ 8–9, 258 P.3d 640. After briefly describing
the use of medical panels in workers’ compensation cases, we
first consider whether the Board’s resolution of Foye’s objection
constituted an abuse of discretion. Because we conclude that it
did, we then consider whether Foye was substantially
prejudiced thereby, ultimately concluding that he was. On that
basis, we set aside the dismissal of Foye’s claim for permanent
total disability and instruct the Commission to appoint another
medical panel with qualified panelists to assess the medical
causation issue.

A. The Appointment of Medical Panels

¶20 Utah Code section 34A-2-601 governs an administrative
law judge’s appointment of a medical panel. It provides that an
administrative law judge generally has discretion to appoint a
medical panel. See Utah Code Ann. § 34A-2-601(1)(a) (stating

20161039-CA 8 2018 UT App 124
 Foye v. Labor Commission

that an administrative law judge “may refer the medical aspects
of a case . . . to a medical panel” (emphasis added)). But an
administrative law judge’s discretion is limited by the
Commission’s rule that a panel must be appointed “where one or
more significant medical issues may be involved,” including
when there are “[c]onflicting medical opinions related to
causation of the injury or disease.” Utah Admin. Code R602-2-
2(A)(1). See generally Migliaccio v. Labor Comm’n, 2013 UT App 51,
¶ 3, 298 P.3d 676 (explaining that an administrative law judge is
required to use a medical panel where there are “conflicting
reports regarding medical causation of an employee’s injuries”
(citing Willardson v. Industrial Comm’n, 904 P.2d 671, 674 (Utah
1995))).

¶21 If a medical panel is appointed, Utah Code subsection
34A-2-601(1)(c) sets forth the required qualifications of its
member physicians. It states, “A medical panel appointed under
this section shall consist of one or more physicians specializing
in the treatment of the disease or condition involved in the
claim.” The use of “shall” in this statute appears to “indicate[]
mandatory action.” Friends of Great Salt Lake v. Utah Dep’t of Nat.
Res., 2017 UT 15, ¶ 29, 393 P.3d 291; see also Utah Code Ann. § 68-
3-12(1)(j) (LexisNexis 2014) (providing that the word “shall” in
the Utah Code should generally be construed as meaning “an
action [that] is required or mandatory”); Board of Educ. of Granite
School Dist. v. Salt Lake County, 659 P.2d 1030, 1035 (Utah 1983)
(stating that the word “shall” employed in statutes “is usually
presumed mandatory”). And the provision specifically identifies
what qualifies physicians to be appointed to a particular medical
panel—those who “specializ[e] in the treatment of the disease or
condition involved in the claim.” Utah Code Ann.
§ 34A-2-601(1)(c); see also Edwards v. Tillery, 671 P.2d 195, 196
(Utah 1983) (per curiam) (concluding that a physician was
qualified under this provision where the plaintiff’s injury
involved smoke inhalation and the physician at issue specialized
in the treatment of pulmonary disease); Zimmerman v. Industrial
Comm’n, 785 P.2d 1127, 1132 (Utah Ct. App. 1989) (concluding
that the physicians on the medical panel—a neurologist and an

20161039-CA 9 2018 UT App 124
 Foye v. Labor Commission

orthopedic surgeon—were qualified to render an opinion on
medical causation where, at the time of the panel’s appointment,
the petitioner’s diagnosis involved hip and back pain).

¶22 Thus, the statute’s plain language requires that the panel
consist of physicians who specialize in the “treatment of the
disease or condition” at issue in the case. See Utah Code Ann.
§ 34A-2-601(1)(c). And nothing in this provision “limits this
requirement or provides exceptions to it.” See Friends of Great Salt
Lake, 2017 UT 15, ¶ 29.

¶23 Once a medical panel report is completed, an
administrative law judge and the Board have discretion to adopt
or reject it on the basis of the evidence developed in the case. See
Utah Code Ann. § 34A-2-601(2)(e) (LexisNexis 2015) (providing
that, although an administrative law judge “may base . . . [her]
finding and decision on the report of . . . a medical panel,” an
administrative law judge “is not bound by [the medical panel]
report . . . if other substantial conflicting evidence in the case
supports a contrary finding”); see also Bade-Brown v. Labor
Comm’n, 2016 UT App 65, ¶ 13, 372 P.3d 44 (explaining that
“even if the ALJ chooses to adopt the medical panel’s report, it is
the prerogative and the duty of the [Board] to consider not only
the report of the medical panel, but also all of the other evidence
and to draw whatever inferences and deductions fairly and
reasonably could be derived therefrom” (quotation simplified)).
This is because the Board, not the medical panel, is the “ultimate
finder of fact.” Hutchings v. Labor Comm’n, 2016 UT App 160,
¶ 23, 378 P.3d 1273; see also Bade-Brown, 2016 UT App 65, ¶ 15
(stating that the Board “may also, in its role as the ultimate fact-
finder, choose to rely on one portion of a medical panel report
and to reject other inconsistent portions” (quotation simplified));
Danny’s Drywall v. Labor Comm’n, 2014 UT App 277, ¶ 14, 339
P.3d 624 (“When a medical panel is convened, the role of the
Medical Panel is to evaluate medical evidence and advise an
administrative law judge with respect to the administrative law
judge’s ultimate fact-finding responsibility.” (quotation
simplified)).

20161039-CA 10 2018 UT App 124
 Foye v. Labor Commission

¶24 However, if a written objection is made to a medical panel
report, “the administrative law judge may set the case for
hearing to determine the facts and issues involved.” Utah Code
Ann. § 34A-2-601(2)(f)(i). “An ALJ’s decision whether to admit a
medical panel report into evidence or to hold an objection
hearing is entirely discretionary, and we will provide relief only
when a reasonable basis for that decision is not apparent from
the record.” Right Way Trucking, LLC v. Labor Comm’n, 2015 UT
App 210, ¶ 10, 357 P.3d 1024 (quotation simplified). Likewise, an
administrative law judge’s (and the Board’s) findings about, and
ultimate resolution of, the petitioner’s objection must have
support in the record to be sustained. See Bade-Brown, 2016 UT
App 65, ¶ 19; Danny’s Drywall, 2014 UT App 277, ¶ 11.

B. Foye’s Objections to the Medical Panel Report

¶25 Foye asserts on judicial review that the Board exceeded its
discretion in affirming admission of the medical panel report
where, despite the panel’s opportunity to provide supportive
evidence, no evidence exists to suggest that either panelist was
qualified under Utah Code section 34A-2-601(1)(c), as there is no
evidence that either panelist specialized in the treatment of
carbon monoxide poisoning or preexisting pseudo-dementia. We
agree.

¶26 As discussed above, we will sustain the Board’s
resolution of a petitioner’s objection so long as there is a
reasonable basis for that resolution in the record. See, e.g., Right
Way Trucking, 2015 UT App 210, ¶ 10. Because the record does
not support the Board’s determination that the medical panel
was qualified to render an opinion in this case, we conclude that
the Board exceeded its discretion by overruling Foye’s objections
on that basis and admitting the medical panel report.

¶27 In her initial interim findings, the ALJ identified the
relevant disease or condition involved in the claim as “carbon
monoxide poisoning” or a preexisting condition that “may be
pseudo-dementia.” In addressing Foye’s objection to the medical
panel report, the ALJ found the panelists qualified to address

20161039-CA 11 2018 UT App 124
 Foye v. Labor Commission

these conditions based upon a Commission directory that
apparently identified Dr. Biggs, a family medicine physician, as
having experience treating carbon monoxide poisoning, and also
based upon the fact that Dr. Watkins is a board certified
neurologist. The directory is not part of the record.

¶28 On review of the ALJ’s decision, the Board found the
panelists qualified only after over-generalizing the conditions at
issue. Rather than finding that the panelists were qualified to
render an opinion based on their specialties in treating the
identified conditions involved in the claim—carbon monoxide
poisoning and/or preexisting pseudo-dementia—the Board
determined that the panelists were “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.”

¶29 While we would ordinarily defer to the Board’s findings
on this issue, we cannot do so where there is no evidence in the
record to support them. See Danny’s Drywall v. Labor Comm’n,
2014 UT App 277, ¶ 11, 339 P.3d 624. Foye’s objection put the
panelists’ qualifications to render an opinion directly at issue.
But neither the ALJ nor the Board identified evidence that
supported a conclusion that the panelists were specialists in
treating carbon monoxide poisoning or pseudo-dementia. The
directory the ALJ referred to as evidence that Dr. Biggs had
experience with carbon monoxide poisoning was not included in
the record, 3 and the panelists did not, in response to Foye’s
objection, provide evidence of their qualifications upon which
the ALJ and the Board could rely. Further, the Board merely
identified both physicians’ general practice expertise as
apparently sufficient. Thus, no record evidence supports the
Board’s determination that either panelist specialized in treating
carbon monoxide poisoning or Foye’s potentially preexisting

3. It is not clear that the directory would demonstrate the
panelists’ qualifications in any event.

20161039-CA 12 2018 UT App 124
 Foye v. Labor Commission

pseudo-dementia. See Utah Code Ann. § 34A-2-601(1)(c)
(LexisNexis 2015).

¶30 Accordingly, we cannot conclude that the ALJ and the
Board had an evidentiary basis to find the panelists were in fact
qualified and, on that basis, overrule Foye’s objection. See Bade-
Brown v. Labor Comm’n, 2016 UT App 65, ¶ 8, 372 P.3d 44
(explaining that we will provide relief from the Board’s refusal
to exclude a medical panel report on the basis of an objection “if
a reasonable basis for that decision is not apparent from the
record” (quotation simplified)). Rather, in these circumstances—
where the petitioner objected to the panelists’ qualifications but
no evidence was provided or adduced to rebut the objections—
the objections were well-taken, and the medical panel reports
should have been excluded. See Johnston v. Labor Comm’n, 2013
UT App 179, ¶¶ 29–31, 307 P.3d 615 (explaining that a reviewing
court should consider whether a petitioner’s objection to a
medical panel report is well-taken by looking to the deficiencies
alleged and the record supporting the validity of the panel
report). The Board therefore exceeded its discretion in admitting
the panel report over Foye’s objections to the panelists’
qualifications. See id.

C. Substantial Prejudice

¶31 We also conclude that Foye was substantially prejudiced
by the Board’s admission of and subsequent reliance on the
medical panel report over his objections to the panelists’
expertise. See Utah Code Ann. § 63G-4-403(4) (LexisNexis 2016).
A person is substantially prejudiced by an agency action if that
challenged action was not harmless. See Petersen v. Utah Labor
Comm’n, 2017 UT 87, ¶ 8, 416 P.3d 583; WWC Holding Co. v.
Public Service Comm’n, 2002 UT 23, ¶ 7, 44 P.3d 714. “An error
will be harmless if it is sufficiently inconsequential that there is
no reasonable likelihood that the error affected the outcome of
the proceedings.” Smith v. Department of Workforce Servs., 2010
UT App 382, ¶ 17, 245 P.3d 758 (quotation simplified).

20161039-CA 13 2018 UT App 124
 Foye v. Labor Commission

¶32 The statute’s plain language, requiring the panelists to be
physicians specializing in treating the condition involved in the
claim, indicates that a particular physician’s qualifications vis-à-
vis a particular claimed disease or condition matter; the obvious
implication is that not every physician will be qualified to sit on
a particular medical panel and render an opinion. See Utah Code
Ann. § 34A-2-601(1)(c); see also Edwards v. Tillery, 671 P.2d 195,
196 (Utah 1983) (per curiam) (recognizing an objection to
medical panelists’ qualifications to render an opinion regarding
the conditions at issue); Zimmerman v. Industrial Comm’n, 785
P.2d 1127, 1132–33 (Utah Ct. App. 1989) (same). And while the
Board is not required to rely on the medical panel’s findings, it is
not unusual for the Board to do so. Danny’s Drywall, 2014 UT
App 277, ¶ 14. We conclude that under the circumstances
present here, the Board’s admission of the medical panel report
was not harmless.

¶33 In this case, the issue of medical causation was disputed,
and the medical panel was enlisted to assist the ALJ (and, later,
the Board) in resolving this dispute and in making the medical
causation determination. But there was no evidence that the
panelists were qualified to render the medical causation
opinions about the conditions at issue. Nevertheless, the ALJ
admitted the medical panel report into evidence, which the
Board affirmed. And, importantly, it is apparent from their
respective decisions that the ALJ and the Board relied heavily
upon the medical panel’s medical causation conclusions to
resolve the medical causation dispute and ultimately dismiss
Foye’s claim. Although the ALJ noted some medical opinion
evidence apart from the panel’s report regarding medical
causation, she ultimately determined that the panel’s report was
a “well thought out” and “logical evaluation” that persuaded
her that Foye had not demonstrated his current condition was
medically caused by the work accident. The Board, in affirming
the ALJ’s decision, likewise found “the medical panel’s
conclusions to be persuasive on the issue of medical causation”
and added that the panel’s conclusions were “the product of . . .
expert review.”

20161039-CA 14 2018 UT App 124
 Foye v. Labor Commission

¶34 In sum, the medical panel’s apparent lack of requisite
expertise is a fundamental defect and undermines the ALJ’s and
the Board’s reliance on the panel’s medical causation opinions
and conclusions: the panelists were not duly qualified to assess
the conditions involved in the claim as required under section
34A-2-601 or to render a medical opinion in the case at all. In
these circumstances, where there is a fundamental defect in the
medical panel’s report—one that suggests the panelists were not
qualified to serve on the panel in the first instance—and the ALJ
and the Board relied on the defective report to resolve a
causation dispute, we cannot conclude that admitting the
medical panel report was harmless. See Petersen, 2017 UT 87, ¶ 8.

¶35 We therefore set aside the dismissal of Foye’s claim for
permanent total disability on the basis of the industrial accident
in October 2013. We instruct the Commission to appoint another
medical panel, with qualified panelists to assess the medical
causation issue, and to then consider the issue of medical
causation as it relates to Foye’s claim.

II. Foye’s Other Claims

¶36 Foye has asserted one other primary claim on judicial
review. 4 Foye contends that the Commission’s promulgation of

4. As we have already noted, supra note 2, Foye also contends
that the Commission engaged in an unlawful decision-making
process in dismissing his case, and as evidence in support of this
contention, he points toward several actions relating to the
medical panel. In particular, he alleges that (1) the ALJ engaged
in improper ex parte communications with the medical panel, (2)
the Commission provided the medical panel with an out-of-
jurisdiction instruction pamphlet that contains erroneous
instructions regarding causation determinations, and (3) the
Commission permitted a biased medical panel to render an
opinion in his case. But each issue relates to the specific medical
panel already convened and its members, actions, and
(continued…)

20161039-CA 15 2018 UT App 124
 Foye v. Labor Commission

rule R602-2-1(F)(3), which permits employers to require an
employee to submit to a medical examination by the physician of
the employer’s choice, constitutes an unconstitutional delegation
of legislative authority to employers and insurance carriers
under Article V, Section 1, of Utah’s constitution. 5 On that basis,
Foye claims that the Commission may not rely on the medical
reports prepared by Kodiak’s physicians. See Utah Code Ann.
§ 34A-2-602(1) (LexisNexis 2015) (“The division or an
administrative law judge may require an employee claiming the
right to receive compensation . . . to submit to a medical
examination at any time, and from time to time, at a place
reasonably convenient for the employee, and as may be
provided by the rules of the commission.”).

¶37 In particular, Foye argues that rule R602-2-1(F)(3)
constitutes an unconstitutional delegation of legislative authority
because it delegates the right and authority to respondent
employers and insurance carriers to require medical
examinations of the employee, without qualification, and in
contravention to the employee’s privacy. Foye contends that the
rule improperly places “employers and insurance carriers on
equal footing” with the Commission by essentially “remov[ing]

(…continued)
considerations. Because we are instructing the Commission to
convene a new medical panel to address the question of medical
causation, we need not consider these issues.

5. Article V, Section 1 of the Utah Constitution provides,
The powers of the government of the State of Utah
shall be divided into three distinct departments,
the Legislative, the Executive, and the Judicial; and
no person charged with the exercise of powers
properly belonging to one of these departments,
shall exercise any functions appertaining to either
of the others, except in the cases herein expressly
directed or permitted.

20161039-CA 16 2018 UT App 124
 Foye v. Labor Commission

the exercise of discretion” or oversight over the conditions
related to a respondent’s entitlement to medical examinations
from the Commission entirely. In making this argument, Foye
relies heavily on our supreme court’s decision in Revne v. Trade
Commission, 192 P.2d 563 (Utah 1948), arguing that the
circumstances in that case—where our supreme court struck
down certain regulations as unconstitutional delegations of
legislative power—are similar to those present in his case.

¶38 We are not persuaded. Although Foye claims that the rule
essentially places the employer on the same level with the
Commission and that the Commission, in promulgating the rule,
has effectively surrendered all of its necessary oversight
discretion to private parties, Foye has not demonstrated how this
is so. While rule R602-2-1(F)(3) gives respondent employers the
right to require an employee to undergo a medical examination,
nothing in the language of rule appears to prevent an employee
from seeking relief, or the Commission from providing relief, if
the employer, for example, makes unreasonable demands of the
employee related to a required medical examination. Nor has
Foye provided evidence suggesting that, as a practical matter,
the Commission has surrendered through the rule its discretion
and oversight authority over employee medical examinations in
workers’ compensation cases.

¶39 In this regard, we agree with the Board that the case Foye
primarily relies on in making his argument is inapposite. In
Revne, our supreme court held that the Utah State Barber Board
improperly delegated its legislative authority to the class of
barbers. Id. at 568. In that case, the Board promulgated
regulations that essentially conferred upon a 70% majority of
barbers in an area the sole authority to initiate changes in prices
or opening and closing hours for barber shops in a given area;
under the regulations, the Barber Board was left with no power
“to act for the public upon its own initiative.” Id. In concluding
the regulations were unconstitutional, the supreme court was
especially troubled that, although the law was “passed to protect
the public health and safety” and the Barber Board theoretically

20161039-CA 17 2018 UT App 124
 Foye v. Labor Commission

stood between the public and the 70% of the barbers required to
agree upon and initiate changes to prices and hours, the Barber
Board’s lack of initiative authority subjected the public interest
to “the whim” of the barbers, a group “who may be very
antagonistic to [the] public interest.” Id. at 567–68. Here, in
contrast, it is not apparent from the language of the rule that the
Commission, in promulgating it, has necessarily surrendered its
oversight and discretion over the medical examination process to
employers or insurance carriers in contravention to the greater
public’s interest.

¶40 Furthermore, to the extent Foye is arguing that rule R602-
2-1(F)(3) is not consistent with the policy or language of Utah
Code section 34A-2-602(1)—the statute authorizing the
Commission to make rules regarding medical examinations—
Foye has not demonstrated how the rule is inconsistent. See
generally Robinson v. State, 2001 UT 21, ¶¶ 14, 21, 20 P.3d 396
(explaining that an agency “may only effect policy mandated by
statute” through their rules and that an “agency’s rules need
only be consistent with its governing statutes” (quotation
simplified)). The plain language of the statute at least facially
appears to confer upon the Commission discretion to make rules
to facilitate medical examinations of the employee. See State v.
Briggs, 2008 UT 83, ¶¶ 15–16, 199 P.3d 935 (addressing a statute
that confers authority on the agency to define requirements and
the authority to devise rules to prescribe procedures to fulfill
certain requirements, and concluding that a statute that “merely
confers discretion [on the executive agency at issue] to prescribe
procedures . . . to fulfil statutory requirements” does not run
afoul of the non-delegation doctrine). And rule R602-2-1(F)(3)
appears to be just that—a rule facilitating medical examinations
of the employee.

¶41 Accordingly, we are not persuaded that rule R602-2-
1(F)(3) constitutes an unconstitutional delegation of legislative
power to employers and insurance carriers, and we therefore
decline to instruct the Commission that it may not rely on
Kodiak’s medical examinations.

20161039-CA 18 2018 UT App 124
 Foye v. Labor Commission

CONCLUSION

¶42 We conclude that the Board exceeded its discretion when
it found that the medical panelists were qualified to render a
medical opinion in this case and on that basis overruled Foye’s
objection to the medical panel reports. We therefore set aside the
Board’s dismissal of Foye’s claim for permanent total disability
and instruct the Commission to appoint a new medical panel to
evaluate the issue of medical causation. Because we set aside the
Board’s dismissal, we decline to address Foye’s overall claim
that the Commission engaged in an unlawful decision-making
process. We nevertheless reject Foye’s claim that the
Commission’s rule R602-2-1(F)(3) constitutes an unconstitutional
delegation of legislative authority to respondents.

20161039-CA 19 2018 UT App 124