BASF Corporation v. Labor Commission

2023 UT App 108

THE UTAH COURT OF APPEALS

BASF CORPORATION AND INDEMNITY INSURANCE COMPANY,
Petitioners,
v.
LABOR COMMISSION AND BRADLEY WEST,
Respondents.

Opinion
No. 20220037-CA
Filed September 21, 2023

Original Proceeding in this Court

Brad J. Miller, Attorney for Petitioners
Richard R. Burke, Attorney for
Respondent Bradley West

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER
and DAVID N. MORTENSEN concurred.

ORME, Judge:

¶1 Bradley West was employed by BASF Corporation for over
thirty years, during which time he was exposed to chemicals and
particulates common in the automotive refinishing business. He
was also injured in a warehouse accident in 2015. Following the
accident, West continued to work but experienced significant
respiratory symptoms that have often been debilitating and, in
any event, life-altering.

¶2 West filed claims for workers’ compensation benefits,
which were contested by both BASF Corporation and its insurer,
Indemnity Insurance Company (collectively, Employer, unless
the context suggests the reference is solely to BASF Corporation).
The administrative law judge (ALJ) appointed a medical panel to
review West’s extensive medical records and to assist in clarifying
conflicting medical opinions regarding the causation of West’s
 BASF Corporation v. Labor Commission

maladies. When the ALJ returned a decision in West’s favor,
Employer requested that the Labor Commission Appeals Board
(the Commission) review the ALJ’s decision. The Commission
then sent the case back to the ALJ, requesting that a second
medical panel be appointed to provide further clarification on the
issue of medical causation. After receiving the second medical
panel’s opinion, the ALJ again found in favor of West, and again
the Commission was asked to review the ALJ’s determination.

¶3 Following the Commission’s favorable decision for West,
Employer now seeks judicial review of that determination. We
decline to disturb the Commission’s order.

BACKGROUND 1

Industrial Accident and Exposure

¶4 Employer is in the business of manufacturing chemicals
that make up automotive finishes and bodywork products used
by autobody technicians. West held several different roles during
his nearly thirty years of working for Employer, but beginning in
2015, his role changed to one where he was responsible for
training autobody technicians on how to do complete autobody
repair work. More specifically, West trained technicians how to
perform repairs on damaged vehicles and how to utilize
Employer’s paint system to apply automotive finishes. During his
employment, West was exposed to a veritable laundry list of
chemicals. Prior to March 2015, West had already “been
diagnosed with industrial asthma since 1997 along with a
deviated septum, sinus cyst, bronchitis, and allergic rhinitis due
to allergens.”

1. “In reviewing an order from the Commission, we view the facts
in the light most favorable to the Commission’s findings and
recite them accordingly.” JBS USA v. Labor Comm’n, 2020 UT App
86, n.1, 467 P.3d 905 (quotation simplified).

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¶5 On March 12, 2015, West was moving inventory from one
of Employer’s warehouses to another as part of his normal
workplace responsibilities. He reached to a top shelf for a gallon
can of an industrial automotive resin called SB01, and in an
attempt to obtain a better hold on the can, he tipped it in his
direction. But the lid of the can had not been properly secured,
and once West tipped it toward himself, the SB01 resin spilled
onto his face and down his body. The incident left West with
“burning in his eyes, ‘plugged sinuses’, runny nose, congestion,
rashes on his face and arms, and significant coughing.” Although
most of these symptoms resolved with time, he was left with
continued “sinus congestion and a runny nose.”

¶6 Following the accident, West continued to train others on
the use of Employer’s paint system until March 8, 2016. The
process involved using several different chemicals that would
“gas off,” operating sanding tools that produced airborne
particulates, and mixing various compounds to produce the
autobody paint, which is then sprayed through a paint gun.

¶7 Needless to say, the air surrounding West while he was
training others and working was full of chemicals and
particulates. So during the times “when he anticipated he would
be exposed to chemicals and dust,” he wore the appropriate safety
apparatus, including an “air supplied hood respirator, a paint
suit, nitrile solvent resistant gloves, and safety boots.” He would,
however, frequently walk through auto shops without the safety
apparatus when looking for a painter or manager and, as a result,
was exposed to whatever was in the air while doing so. West
reported that beginning in October 2015, he had been exposed to
an increased amount of aerosol paints and chemicals as part of his
changed job duties.

¶8 After the SB01 resin incident, West continued to have a
cough and sinus congestion, but he chalked it up to “seasonal
allergies.” When his symptoms worsened in November 2015, he
sought medical treatment, believing that his symptoms were
attributable to a cold, but he reported that he had been suffering

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from congestion and what he believed were allergies since the
summer. About three months later, West reported that he had
been experiencing “difficulty breathing, [a] cough, congestion,
and a runny nose” as well as “occasional sinus pain [and] clogged
ears” during the preceding three months.

Conflicting Medical Opinions 2

¶9 In March 2016, West started coughing while giving a
product demonstration in a paint booth. He was wearing his
safety equipment at the time, but he experienced two hours of
continual coughing, to the point that he lost consciousness twice
during the spell.

¶10 Subsequent testing and medical visits led to a diagnosis of
“interstitial lung disease[3] of unclear etiology.” 4 In April 2016,
West underwent a biopsy, which indicated that he was suffering

2. We outline the many, and often conflicting, medical opinions
and diagnoses in the record because of the important context this
provides for the decision to appoint a medical panel in the first
place and the subsequent decision to appoint a second medical
panel. As will be seen, the cause of West’s ailments was far from
straightforward.

3. Interstitial pulmonary disease, or “interstitial lung disease,”
“describes a large group of disorders, most of which cause
progressive scarring of lung tissue. The scarring associated with
interstitial lung disease eventually affects your ability to breathe
and get enough oxygen into your bloodstream.” Interstitial Lung
Disease, Mayo Clinic, https://www.mayoclinic.org/diseases-
conditions/interstitial-lung-disease/symptoms-causes/syc-203531
08 [https://perma.cc/DGY5-UJJP].

4. Etiology is “the cause of a disease or abnormal
condition.” Etiology, Merriam-Webster, https://www.merriam-
webster.com/dictionary/etiology [https://perma.cc/GVD5-
HHRP].

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from a condition “most consistent with chronic eosinophilic
pneumonia” (EP). 5 West then started prednisone treatment. In
May 2016, the same doctor who diagnosed him with interstitial
lung disease offered the opinion that West’s malady was likely the
result of “long term exposure or occupational exposure in the auto
industry.” In August 2016, the director of the Interstitial Lung
Disease Program at the University of Utah opined that West’s
condition “was caused by 34 years of occupational chemical
exposures, with specific notice given to . . . isocyanates.” 6

¶11 In December 2016, another of West’s doctors, Dr. Gleich,
indicated that it was his belief that “the March 1, 2015 to March 8,
2016 industrial exposure caused more than 50% of” West’s EP and
“that industrial inhalation of diisocyanate[7] may have
caused/worsened [West’s] lung disease.” During this time, West’s

5. “Eosinophilic pneumonia is a group of rare infections that
affects your lungs. A type of white blood cell builds up in your
lungs and blood, causing inflammation and damage.” Eosinophilic
Pneumonia, Cleveland Clinic, https://my.clevelandclinic.org/healt
h/diseases/23955-eosinophilic-pneumonia [https://perma.cc/YQ2
S-NM97].

6. “Isocyanates are compounds . . . , which are components of”
among other things, “polyurethane paints.” Isocyanates, United
States Dep’t of Labor: Occupational Safety & Health Admin.,
https://www.osha.gov/isocyanates (last visited Sept. 7, 2023).
“Isocyanates are the raw materials that make up all polyurethane
products.” Id. “Health effects of isocyanate exposure include
irritation of skin and mucous membranes, chest tightness, and
difficult breathing.” Id. “The main effects of hazardous exposures
are occupational asthma and other lung problems, as well as
irritation of the eyes, nose, throat, and skin.” Id.

7. “The most widely used [isocyanate] compounds are
diisocyanates[.]” Isocyanates, Centers for Disease Control
& Prevention, https://www.cdc.gov/niosh/topics/isocyanates/def
ault.html [https://perma.cc/U3ER-SQVD].

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health continued to decline, 8 and he applied for workers’
compensation benefits for the (1) industrial accident and
(2) occupational disease, asserting that both were a result of his
occupational exposure between March 2015 and March 2016.

¶12 In May 2017, after conducting a medical examination, one
of Employer’s medical consultants concurred with the previous
diagnoses of “[EP] and interstitial lung disease” but reached a
different conclusion regarding the cause of West’s condition. The
doctor noted that the EP “is idiopathic[9] and the interstitial lung
disease is inflammatory, which is not consistent with known
causes.” That same month, another medical consultant for
Employer, Dr. Schwartz, conducted an additional medical
evaluation and also concurred with the EP diagnosis but
concluded that the chemical exposure was not the “probable
cause” of West’s condition. Dr. Schwartz further noted that
simply because someone developed a condition “after years of
work with a number of paint products” does not automatically
mean that the condition was caused by exposure to those
products.

¶13 In September 2017, Dr. Pearl, an adjunct professor in the
University of Utah’s Division of Critical Care and Pulmonary

8. For example, West underwent a functional capacity evaluation,
during which the doctor noted that “any exertion induced
coughing, shortness of breath, spitting for removal of sputum,
and/or blowing of the nose to clear the airway to continue the task
assigned.” The doctor also indicated that with any exertion,
West’s heart rate spiked and his oxygen levels dropped drastically
in a short amount of time, which also appeared to have an effect
on his “mental capacity and required [West] to ‘regroup’ to
remember the task he had been performing.”

9. “Idiopathic” means “arising spontaneously or from an
obscure or unknown cause.” Idiopathic, Merriam-Webster,
https://www.merriam-webster.com/dictionary/idiopathic [https:/
/perma.cc/5NBB-HC53].

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Medicine, reviewed West’s medical records to aid in the disability
determination. Dr. Pearl diagnosed West with “work-related
asthma due to his occupational exposure” while employed “prior
to March 2015.” But while agreeing with the EP diagnosis, Dr.
Pearl “was unsure of the medical cause,” noting West’s
“diagnosis of [EP] is proven but its relationship to his exposure is
not.” Dr. Pearl also opined that “[i]t is more likely than not, that
Mr. West’s March 12, 2015 industrial accident aggravated,
accelerated and or permanently worsened his industrially caused
asthma.”

¶14 In January 2018, Dr. Schwartz authored a supplemental
medical evaluation disagreeing with Dr. Pearl’s diagnosis of
industrial asthma. He explained that there was no evidence to
support it, and he did not deviate from his previous conclusion
that West’s EP had no “established relationship with his exposure
to paint, isocyanates, or any other chemicals.” By April 2018, Dr.
Gleich deemed West “totally disabled” and not expected to return
to work.

First Medical Panel

¶15 In August 2018, the ALJ referred the case to a medical panel
to review West’s medical records and to respond to the ALJ’s
questions regarding causation of his medical condition. Two of
the questions for the medical panel requested an opinion about
what portion of West’s condition was caused by the industrial
accident and the occupational exposure. Notably, the chair of the
medical panel, Dr. Jarvis, “served on the faculty of National
Jewish Center in Denver for several years, which is a tertiary care
clinical facility specializing in respiratory disorders,” and while
there, he “focused exclusively on disease caused by work and
environment affecting the respiratory tract.” The medical panel’s
subsequent report opined that West “has chronic bronchitis
caused by the March 12, 2015 industrial accident.” In addressing
the occupational exposure between March 2015 and March 2016,
the panel agreed that West has EP “due to exposures at his work,
specifically isocyanates,” which are “a known immunologic cause

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of occupational asthma,” and highlighted that many physicians
believe that isocyanates can cause conditions related to EP. The
medical panel noted that the EP diagnosis is relatively new and
that “[m]ost of the cases described to date in the medical literature
are of an unknown etiology” but that one medical case report
indicates that occupational exposure to isocyanates can result in
EP. The medical panel explained that “there is no scientific
consensus concerning whether isocyanate exposure causes” EP
and, “acknowledging this paucity of information, . . . agree[d]
that a reasonable degree of medical probability cannot be
achieved given the state of clinical science.” Nonetheless, the
medical panel found, with our emphasis, “causation in this case
to be strongly possible.”

¶16 In July 2020, the ALJ adopted the medical panel’s
conclusions and ordered that Employer provide West
compensation for past and future medical expenses associated
with his condition, as well as total disability compensation.
Employer requested that the Commission review the ALJ’s order,
arguing that the ALJ erred in awarding West compensation
because the medical panel did not reach a conclusion of medical
probability regarding the causation of West’s EP. On review, the
Commission explained that the “circumstances of this case leave
the [Commission] with the unusual scenario of having to make a
determination on medical causation for an uncommon condition
that even the medical panel did not fully comprehend.”

¶17 The Commission then remanded the case for further
consideration, ordering that a second medical panel be appointed
and noting that the remand did “not affect [the ALJ’s] finding on
the medical causal connection between the work accident . . . and
Mr. West’s chronic bronchitis condition or his claim for benefits
on such condition.” The Commission further explained that its
remand was not due to a lack of experience on the part of the first
medical panel; quite the opposite: the Commission concurred that
the medical panel had sufficient expertise to provide an opinion
on West’s medical condition and explained that this was so even

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when the medical panel was not able to reach a more definite
conclusion of reasonable medical probability.

Second Medical Panel and the Commission’s Order

¶18 The second medical panel comprised three doctors who,
either through research or treatment of patients, collectively had
specialized knowledge or experience regarding occupational
medicine, including occupational asthma and interstitial lung
disease, and in diagnosing and treating pulmonary pathologies.
In April 2021, after reviewing the available medical records, the
second medical panel issued a report indicating that the case was
“complex and difficult because of [the] ambiguity of [West’s]
presentation and the lack of scientific literature about his specific
condition related to his exposure.” But the panel noted that West’s
lung biopsy results “support[ed] inhalation exposure/s as the
cause of his disorder.” The panel further explained that it
reviewed the relevant MSDSs 10 and that per those documents, it
was clear that West had been exposed to isocyanates, which “are
known to cause pulmonary dysfunction,” as well as to “several
other chemicals that lack appropriate research to determine
chronic toxicity and effects.” The panel also explained that West
“has low personal risk factors for developing non-industrially
related” disease, such as no exposure to animal allergens, no
“exotic travel history,” no smoking history, and no other
“autoimmune disease or family history of pulmonary

10. MSDS is an acronym for “Material Safety Data Sheet,” which
“lists the hazardous ingredients of a product, its physical and
chemical characteristics . . . , its effect on human health, the
chemicals with which it can adversely react, handling
precautions, the types of measures that can be used to control
exposure, emergency and first aid procedures, and methods to
contain a spill.” Standard Interpretations: The Purpose of Material
Safety Data Sheets, United States Dep’t of Labor: Occupational
Safety & Health Admin., https://www.osha.gov/laws-
regs/standardinterpretations/1995-01-25-0 (last visited Sept. 7,
2023).

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dysfunction.” The panel finally noted that it believed that West’s
“occupational disease is largely, if not all, attributable to
industrial causes,” that the “occupational exposure permanently
worsened [West’s] chronic sinopulmonary disease,” and that
West’s disease was wholly attributable to his occupational
exposure.

¶19 Employer objected to the second medical panel’s report,
primarily taking issue with the panel’s opining on the causation
issue even while acknowledging the lack of scientific literature
regarding the result of occupational exposure to isocyanates.
Employer asserted that because of the lack of literature, the
second medical panel “chose to speculate regarding the causation
of” West’s condition.

¶20 The ALJ subsequently issued an order referencing the
second medical panel’s findings, concluding that the evidence
supported the determination that West’s chronic bronchitis was
caused by the industrial accident and that his occupational
exposure “was the sole cause (100%) of the permanent
aggravation” of his EP. The ALJ again ordered Employer to
compensate West for the associated medical expenses and to
provide West with total disability benefits. 11

¶21 Employer again requested a review of the ALJ’s order, and
the Commission affirmed the order. The Commission explained
that the second medical “panel’s report shows that it considered
the evidence presented and arrived at a well-reasoned and
evidence-based conclusion regarding the causative factors of Mr.
West’s condition” and concluded that it was convinced by the
second medical panel’s opinion regarding causation based on the

11. The order also overruled Employer’s objections to the second
medical panel’s report.

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panel’s “impartial position, collegial review of the evidence, and
expertise in treating the type of respiratory condition at issue.” 12

¶22 Employer now seeks judicial review of the Commission’s
final decision. 13

ISSUES AND STANDARDS OF REVIEW

¶23 Employer first contends that the Commission abused its
discretion when it remanded West’s case back to the ALJ with the
request that a second medical panel be appointed. “We generally
review the Commission’s decisions regarding appointment of
medical panels for abuse of discretion.” Sysco Corp. v. Labor
Comm’n, 2021 UT App 126, ¶ 13, 502 P.3d 1237 (quotation
simplified). See Utah Code Ann. § 63G-4-403(4) (LexisNexis 2019)
(“The appellate court shall grant relief only if, on the basis of the
agency’s record, it determines that a person seeking judicial
review has been substantially prejudiced by . . . agency action
[that] is . . . an abuse of discretion delegated to the agency by
statute.”). “A discretionary decision involves a question with a
range of acceptable answers, some better than others, and the

12. The Commission did set aside a portion of the ALJ’s award for
reasons unrelated to the issues before us.

13. At one point prior to oral argument, West filed a motion to
advance his case on our docket, arguing that Employer had
effectively abandoned its request for judicial review because it
had not filed a reply brief and requesting that we “advance this
appeal to the next procedural stage” “so that [the court] may
promptly dispose of [Employer’s] appeal.” Prior to this opinion,
we had not ruled on that motion. Under the Utah Rules of
Appellate Procedure, filing a reply brief is optional. See Utah R.
App. P. 24(b) (“The appellant or petitioner may file a reply brief.”)
(emphasis added). Because Employer was present at oral
argument and prepared to proceed, West’s request to dispose of
Employer’s appeal on the theory of abandonment is denied.

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agency is free to choose from among this range without regard to
what an appellate court thinks is the best answer.” Graphic
Packaging Int’l Inc. v. Labor Comm’n, 2021 UT App 82, ¶ 21, 495 P.3d
228 (quotation simplified). When applying this particular
standard of review, “we will reverse only if there is no reasonable
basis for the decision.” Id. (quotation simplified).

¶24 In the alternative, Employer argues that even if the
Commission did not abuse its discretion in remanding the case for
the appointment of a second medical panel, both the ALJ and the
Commission erroneously concluded that the second medical
panel’s opinions provided the requisite level of reasonable
medical probability to reach a decision regarding the medical
causation of West’s condition. Whether “medical causation exists
is a question of fact we review for substantial evidence.” YESCO
v. Labor Comm’n, 2021 UT App 96, ¶ 13, 497 P.3d 839. “In
reviewing for substantial evidence, we defer to the agency if there
is a quantum and quality of relevant evidence that is adequate to
convince a reasonable mind to support a conclusion.” Id.
(quotation simplified). And Employer bears the burden here: this
court “will not disturb the Commission’s factual findings unless
the party challenging the findings demonstrates that a finding is
not supported by substantial evidence.” Danny’s Drywall v. Labor
Comm’n, 2014 UT App 277, ¶ 11, 339 P.3d 624 (quotation
simplified).

ANALYSIS

I. The Remand for a Second Medical Panel

¶25 We first address whether the Commission abused its
discretion when it remanded the matter to the ALJ and requested
that a second medical panel be appointed to further explain the
medical causation behind West’s condition. Employer argues that
the Commission abused its discretion because it had already
concluded that—despite having the required expertise to
formulate an opinion about West’s condition—the first medical

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panel was not able to provide an opinion regarding the reasonable
medical probability of West’s condition, and yet the Commission
opted to send the matter back to be reassessed by a new medical
panel. In response, West argues that the Commission did not
abuse its discretion by appointing a second medical panel because
that is a statutorily conferred option of which the Commission
may take advantage in the exercise of its discretion. We are not
persuaded by Employer’s position and conclude that the
Commission was well within its discretion when it remanded the
matter for the appointment of a second medical panel.

¶26 From the outset, it is helpful to discuss how an ALJ and the
Commission are permitted—and sometimes required—to utilize
medical panels. Section 34A-2-601(1)(a) of the Utah Code states
that an ALJ may appoint a medical panel in a case involving
“medical aspects.” See Utah Code Ann. § 34A-2-601(1)(a)
(LexisNexis Supp. 2022). And Utah Administrative Code R602-2-2
specifies that a medical panel must be appointed when there are
“one or more significant medical issues . . . involved” such as
“[c]onflicting medical opinions related to causation of the injury
or disease.” Utah Admin. Code R602-2-2(a)(i); see also Graphic
Packaging Int’l Inc. v. Labor Comm’n, 2021 UT App 82, ¶ 24 n.8, 495
P.3d 228 (“The Commission’s discretion, as set forth in [Utah
Code section 34A-2-601(1)(a)], may be constrained by
administrative rule, which requires the Commission to appoint a
medical panel in certain circumstances.”). Once a medical panel is
appointed, its role is to “advise[] an administrative law judge with
respect to the administrative law judge’s ultimate fact-finding
responsibility.” 14 Utah Code Ann. § 34A-2-601(1)(e)(ii)(B). An ALJ
may then utilize the information and opinions provided by the

14. To be sure, there is not a dispute in this case about whether the
ALJ abused its discretion in appointing the first medical panel—
clearly both sides recognize that there were conflicting medical
opinions that warranted having a medical panel, and the ALJ did
exactly what was required at that point in the proceeding. Rather,
Employer argues that the Commission abused its discretion when
it requested that a second medical panel be consulted.

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medical panel to reach a decision regarding medical causation.
See, e.g., Price River Coal Co. v. Industrial Comm’n, 731 P.2d 1079,
1084 (Utah 1986) (“[T]he medical panel is only to take the facts as
found by the administrative law judge and consider them in light
of its medical expertise to assist the administrative law judge in
deciding whether medical cause has been proven.”). Then, on
review of the ALJ’s decision, the Commission “has fact-finding
authority.” Sysco Corp. v. Labor Comm’n, 2021 UT App 127, ¶ 12,
502 P.3d 1242 (quotation simplified). Although the Commission
may not conduct a trial de novo, see Utah Code Ann.
§ 34A-1-303(b) (LexisNexis 2019), if necessary, the Commission
may “base its decision on” “written supplemental evidence” it
requests, id. § 34A-1-303(4)(c).

¶27 It is also useful to consider Graphic Packaging International
Inc. v. Labor Commission, 2021 UT App 82, 495 P.3d 228, on which
both parties rely to support their respective arguments. In Graphic,
an ALJ appointed a medical panel to consider the medical
condition of an injured worker. Id. ¶ 11. The medical panel took
almost a year and a half to provide the ALJ with an initial report—
only after the ALJ repeatedly asked when the report would be
completed—and then took over eight months to respond to
follow-up requests from the ALJ. Id. ¶¶ 12–13. Additionally, the
medical panel “appeared to not understand” the claimant’s
injuries and provided a response to a question that was never
presented by the ALJ on a matter that was not in dispute by other
reviewing physicians. Id. ¶ 26. The ALJ appointed a second
medical panel following the claimant’s objection to the first
medical panel’s report based in part on the length of time it took
the first medical panel to respond and “because the previous
panel members had retired and were no longer available to
provide clarification or answer the ALJ’s questions.” Id. ¶ 14
(quotation simplified). Following the ALJ’s decision, the
employer petitioned the Commission for review, arguing that the
ALJ “continued to needlessly refer the claim back for new medical
panels until a favorable medical panel result for [the claimant]
was finally received.” Id. ¶ 18 (quotation simplified). The
Commission rejected the employer’s argument and affirmed the

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ALJ’s order, finding that the second medical panel’s
determinations were “fully ‘supported by the evidence in the
record’ and ‘the product of impartial, collegial, and expert
review’” of the claimant’s medical history. Id.

¶28 On petition for judicial review, the employer argued,
among other things, that the ALJ erred in appointing a second
medical panel and that the Commission erred by affirming the
ALJ’s decision. Id. ¶ 19. More specifically, the employer argued
that the “governing statute does not authorize the appointment of
a new medical panel after one has already been appointed.” Id.
¶ 24 (quotation simplified). In response, this court explained that
the Commission has the discretion to refer a matter back to a new
medical panel. Id. (”We do not read the statute as restrictively as
the Company does, and we do not discern in its text a command
that forbids appointment of more than one medical panel in a
given case.”) (citing Utah Code Ann. § 34A-2-601(1)(a)). This court
concluded that, in the context of the issues encountered with the
first medical panel, the Commission “did not abuse its statutorily
conferred discretion” by requesting that a second panel review
the claimant’s case. See id. ¶ 36.

¶29 Employer contends that this case is distinguishable from
Graphic. In that case, the Commission remanded for the
appointment of a second medical panel on the ground that the
first medical panel lacked the required expertise. But here, the
Commission concluded that the first medical panel was qualified
but was nonetheless unable to provide an opinion regarding
medical causation “within reasonable medical probability.”
Employer argues that “it is unclear how referring the case to a new
medical panel would lead to further clarification” for the
Commission. West also cites Graphic, arguing that, like the
Commission’s action there, appointment of a new medical panel
was appropriate here because “there was a reasonable basis”
behind the Commission’s decision, namely to get more
clarification on the matter of causation. We agree with this latter
reading and application of Graphic.

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¶30 We do not read Graphic as defining the only reason for
when a second medical panel could ever be appointed but
rather as an example of a scenario in which the Commission
could well determine that a second medical panel should be
appointed. Furthermore, we learn from Graphic that what really
matters is that the Commission must provide a “reasonable basis”
for its decision to use its discretion to appoint a second
medical panel. Id. ¶ 21 (quotation simplified). See id.
(explaining that, provided the Commission can articulate a
reasonable basis, this court will not reverse the appointment of a
medical panel). And that is exactly what happened here.
The Commission expressed reticence about coming to a
conclusion regarding causation that a medical panel—which the
Commission duly noted had sufficient expertise—believed that it
could not do to an appropriate level of certainty. In an effort to
obtain more clarity, the Commission opted to have another
medical panel review the matter, which we cannot say was an
inappropriate use of the Commission’s statutorily authorized
discretion. We of course can contemplate a different situation
where, for example, the Commission opted to arbitrarily send the
case back requesting a second panel without providing any
explanation for its decision or providing an illogical explanation.
There, we would likely have other things to say on the matter and
would be concerned about the appropriateness of the
appointment of a second medical panel. But that is not the case
here.

¶31 In sum, we do not view the Commission’s course of
action in this case as an abuse of its discretion. Having reviewed
the case before it, and in light of the key question that the first
medical panel left incompletely answered, it was well within the
purview of the Commission to request that a second medical
panel review the issue and provide further clarification and
guidance to the ALJ in ferreting out and confirming the root cause
of West’s condition.

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II. Reliance on the Second Medical Panel’s Report

¶32 If we conclude that the Commission did not abuse its
discretion in directing that the ALJ appoint a second medical
panel—which we do—Employer argues in the alternative that
both the ALJ and the Commission erred when they overruled
Employer’s objections regarding the second medical panel’s
report. Employer’s attack is two-fold: (1) there was not sufficient
evidence in the record to support that West’s occupational
exposure caused his medical condition and (2) the medical panels,
while both acknowledging the dearth of medical literature—or, in
other words, scientific consensus—on the issue, still
inappropriately “speculated” that West’s EP was caused by his
occupational exposure.

¶33 In response, West explains that the first medical panel was
mistaken when it concluded that it could not offer an opinion on
“‘medical causation’ because there was not yet scientific
consensus that isocyanates can cause EP.” Referencing State v.
Rimmasch, 775 P.2d 388, 396–99 (Utah 1989), superseded by rule as
stated in State v. Maestas, 2012 UT 46, 299 P.3d 892, West asserts
that the issue of scientific consensus has been addressed by the
Utah Supreme Court and that the rule in Utah has long been that
“[m]edical opinions on new or ‘novel’ medical conditions do not
require scientific consensus,” but rather require only that
“medical opinions on novel conditions must be inherently
reliable.” Therefore, West argues that it was reasonable for the
Commission to remand the case to permit a second medical panel
to remedy the first panel’s error in concluding that, due to a lack
of scientific consensus, it could not reach a degree of reasonable
medical probability regarding West’s condition.

¶34 We first address Employer’s argument regarding the
notion that scientific consensus on a subject must be established
before a medical panel can reach a definitive causation
conclusion. We then discuss Employer’s argument that to reach a
conclusion about medical causation, the record must contain
sufficient evidence to support the conclusion.

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A. Scientific Consensus and Rule 702

¶35 There is argument from both sides about the notion of
scientific consensus. Employer argues that because there was not
sufficient scientific consensus in the medical community that
exposure to isocyanates could cause a condition like West’s, as
evidenced by the lack of medical literature regarding the matter,
the medical panel could not offer an opinion to a reasonable
degree of medical probability that West’s condition was a result
of his workplace exposure. In response, West argues that, in fact,
the medical panel did not need to find consensus in the scientific
community because the standard has long since changed to allow
for other avenues of reaching a conclusion regarding the medical
probability that his condition was caused by his exposure, such as
considering whether an opinion is based on application of
specialized knowledge when analyzing and reviewing relevant
facts or data pertinent to a case.

¶36 Under rule 702 of the Utah Rules of Evidence, it is true that
consensus in the scientific community is one way to establish the
requisite causation, but it is not the only way. See Utah R. Evid.
702(c) (“The threshold showing required by [rule 702(b)] is
satisfied if the underlying principles or methods, including the
sufficiency of facts or data and the manner of their application to
the facts of the case, are generally accepted by the relevant expert
community.”). 15 But aside from the general-acceptance avenue,

15. We cannot let West’s position regarding “inherent reliability,”
see supra ¶ 33, to escape comment. West is correct that general
scientific consensus is not the only way to reach a sound causation
conclusion. But “inherent reliability” is not—nor has it ever
been—the standard required under rule 702(b) of the Utah Rules
of Evidence. Instead, the “threshold” that is required is “only a
basic foundational showing of indicia [of] reliability” for expert
“testimony to be admissible.” See State v. Sheehan, 2012 UT App
62, ¶ 22, 273 P.3d 417 (quoting Utah R. Evid. 702 advisory
committee’s note).
(continued…)

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rule 702(b) provides that an expert can offer an opinion if “there
is a threshold showing that the principles or methods that are
underlying in the testimony (1) are reliable, (2) are based on
sufficient facts or data, and (3) have been reliably applied to the
facts.” Id. See also Swanigan v. Avenues Healthcare Inc., 2023 UT App
2, ¶ 13, 524 P.3d 173 (explaining that a “proponent has made a
threshold showing of reliability” if (a) “the principles underlying
the expert’s testimony are reliable, based upon sufficient facts or
data, and have been reliably applied to the facts of the case” or
(b) “by showing that the underlying principles or methods are
generally accepted by the relevant expert community”) (quotation
simplified); State v. Sheehan, 2012 UT App 62, ¶¶ 20–22, 273 P.3d
417 (establishing that the “threshold showing” “requires only a
basic foundational showing of indicia [of] reliability for the
testimony to be admissible, not that the opinion is indisputably
correct”) (emphases added) (quotation otherwise simplified).

¶37 Here, while we assume, without deciding, that there is no
medical consensus about whether isocyanates can be the medical
cause of EP, the first panel did—in conjunction with its discussion

West also cites State v. Rimmasch, 775 P.2d 388 (Utah 1989),
superseded by rule as stated in State v. Maestas, 2012 UT 46, 299 P.3d
892, in support of his argument against Employer’s assertion
regarding scientific consensus. See supra ¶ 33. We reiterate that the
standard as originally promulgated in Rimmasch—i.e., requiring
in instances of “novel scientific principles or techniques” the
imposition of “additional tests of admissibility” to “assure, as a
threshold matter, that the evidence is sufficiently reliable,” see
Rimmasch, 775 P.2d at 396—is no longer the standard required
under rule 702. See Sheehan, 2012 UT App 62, ¶ 20 (explaining that
rule 702 as amended in 2007 now allows “for admission of expert
testimony upon a threshold showing that the principles or
methods on which such knowledge is based are generally
accepted by the relevant legal expert community,” thereby
replacing the “novel vs. non-novel dichotomy that ha[d] served
as a central analytical tool in Utah’s Rule 702 jurisprudence”)
(quotation simplified).

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of its review of West’s medical history—reference a medical study
that supported its conclusion. More specifically, the first medical
panel explained that “while acknowledging this paucity of
information [regarding the causation of EP because of its
‘relatively new’ status], and agreeing that a reasonable degree of
medical probability cannot be achieved given the state of clinical
science, [it] none-the-less finds causation in this case to be strongly
possible.” The second panel, while also noting the lack of
literature supporting causation, provided an explanation of its
review of the facts and data it had been provided. After reviewing
the chemicals West was exposed to and his relevant medical
history, which included a consideration of personal risk factors,
the second panel reached the conclusion that his condition was
wholly attributable to his occupational exposure. And both panels
consisted of doctors who were well-versed in the relevant areas of
medicine.

¶38 If there was any question whether the first medical panel
appropriately relied on the single medical case report to support
its causation conclusions, the matter was then solidly put to rest
with the second medical panel’s report concluding that the
requisite causation was supported by its review of the facts in
West’s case coupled with its expertise in the fields of pulmonary
and occupational diseases. Because scientific consensus was not
the only basis on which either medical panel could opine on
causation, it was not error for the ALJ and the Commission to rely
on the second medical panel’s report to assist them in reaching
their respective determinations.

B. Sufficiency of Evidence and Medical Causation

¶39 Quoting Wright v. Labor Commission, 2021 UT App 43, 489
P.3d 211. Employer contends that to show medical causation, an
injured worker must support the assertion that their occupation
was the cause of the injury or disability with “evidence, opinion,
or otherwise.” See id. ¶ 29 (quotation simplified). Employer argues
that the record must contain sufficient evidence to show that the
Commission’s causation determination was “based on a

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reasonable medical probability rather than on a medical
possibility.” See YESCO v. Labor Comm’n, 2021 UT App 96, ¶ 19,
497 P.3d 839 (quotation simplified). Employer argues that the
record establishes that only a medical possibility, rather than a
probability, exists to support the notion that West’s exposure to the
isocyanate is what caused his condition. We disagree that the
record was lacking in information that the ALJ and the
Commission could, and did, utilize in reaching their respective
conclusions.

¶40 When deciding a matter regarding causation for purposes
of compensation, “[i]t is not unusual for an administrative law
judge and the Commission to adopt the findings of a medical
panel.” Moyes ex rel. Moyes v. State, 699 P.2d 748, 753 (Utah 1985).
“However, it is the prerogative and the duty of the Commission
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.”
Blair v. Labor Comm’n, 2011 UT App 248, ¶ 19, 262 P.3d 456
(quotation simplified), cert. denied, 268 P.3d 192 (Utah 2011). For
this court to “meaningfully review the findings of the
Commission, the findings must be sufficiently detailed and
include enough subsidiary facts to disclose the steps by which the
ultimate conclusion on each factual issue was reached.” Id. ¶ 20
(quotation simplified).

¶41 Here, the record is not sparse. The record contains medical
notes from the doctors that West visited prior to and following the
claim being filed, including conflicting opinions regarding
causation; MSDSs with information about the chemicals West was
exposed to that the second panel had access to; 16 and information
about West’s symptoms before and after the industrial accident,

16. The second medical panel was provided all the MSDSs, while
the first panel noted it did not have the MSDS for the SB01 resin
that spilled on West.

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as well as during his regular course of work involving training
others how to use Employer’s painting systems.

¶42 Additionally, both the ALJ and the Commission provided
detailed explanations as to why their review of the record with
the support of the medical panel reports left them convinced that
West’s repeated exposure to isocyanates through his regular
course of employment was the cause of his condition. The ALJ and
the Commission both referenced West’s work history and
subsequent accident, the symptoms that ensued, the doctor
reports from West’s visits prior to pursuing workers’
compensation benefits, and his working conditions. From their
review, they drew clear, reasoned, and supported inferences and
provided detailed explanations for their conclusions.

¶43 In sum, Employer has failed to show that the Commission’s
findings were not supported by substantial evidence. See Danny’s
Drywall v. Labor Comm’n, 2014 UT App 277, ¶ 11, 339 P.3d 624. We
therefore decline to disturb the Commission’s conclusion that
West’s occupation was the cause of his medical condition.

III. Attorney Fees

¶44 Finally, West requests that this court award attorney fees
to him under rule 33 of the Utah Rules of Appellate Procedure.
West has requested the award based on his claim that Employer’s
request for judicial review was “frivolous because it was not
grounded in fact, not warranted by existing law, and/or a good
faith argument to extend that law.” He further claims that
Employer’s petition for judicial review was a “delay” tactic to
“needlessly increase [his] litigation costs.” Although Employer’s
arguments were unsuccessful, they were not frivolous, and we
therefore decline to award the requested attorney fees. Cf. Redd v.
Hill, 2013 UT 35, ¶ 28, 304 P.3d 861 (stating that the imposition of
attorney fees as a sanction for a frivolous appeal under rule 33 “is
a serious matter and only to be used in egregious cases, lest the
threat of such sanctions should chill litigants’ rights to appeal
lower court decisions”).

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CONCLUSION

¶45 Employer has not persuaded us that the Commission
abused its discretion when it remanded the matter with the
direction that the ALJ appoint a second medical panel to
determine the causation of West’s medical condition.
Furthermore, Employer has not convinced us that the
Commission erred when it concluded, in reliance on the opinion
of the second medical panel, that West’s medical condition was
caused by his industrial accident and occupational exposure to
isocyanates. We therefore decline to disturb the Commission’s
decision.

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