Fastenal v. Labor Commission , 2020 UT App 53 ( 2020 )

2020 UT App 53THE UTAH COURT OF APPEALS
FASTENAL AND PHOENIX INSURANCE,
Petitioners,
v.
LABOR COMMISSION AND RONALD STONE,
Respondents.
Opinion
No. 20180196-CA
Filed April 2, 2020
Original Proceeding in this Court
Mark R. Sumsion and Lori L. Hansen, Attorneys
for Petitioners
Phillip B. Shell, Attorney for Respondent
Ronald Stone
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 Having concluded that putting the pedal to the metal
repeatedly for up to eleven hours a day while driving semi-
trucks for Fastenal caused Ronald Stone’s foot ulcer, the Labor
Commission determined that Stone was entitled to workers’
compensation benefits. Fastenal asserts that the Commission
violated its right to due process in several ways, most
significantly by omitting certain pieces of evidence from the
medical panel’s (Panel) consideration in its determination of
medical causation. Fastenal also contends that the Commission
erred in determining legal causation. We decline to disturb the
Commission’s order.
Fastenal v. Labor Commission
BACKGROUND 1
¶2 From April 2013 to July 2014, Stone worked for Fastenal
driving semi-trucks that operated on a manual transmission
with fifteen gears. Stone’s work schedule included driving for
eleven hours per day to make deliveries in various
cities throughout the country. During one of his driving trips,
Stone discovered a pressure ulcer on the heel of his left foot.
Stone’s doctor opined that Stone’s significant hours driving
caused the ulcer and treated it with cleanings and bandages for
several months.
¶3 Stone brought a claim for workers’ compensation
benefits for his medical expenses and temporary total disability.
During discovery, another doctor designated by Fastenal
(Doctor) diagnosed Stone with peripheral neuropathy,
concluded that the condition had existed for seven-and-a-half
years, and opined that Stone’s driving did not cause the pressure
ulcer. A biomechanical expert (Expert) retained by Fastenal
issued a report in which Expert determined that the semi-truck
clutch required sixty-seven pounds of pressure to be fully
engaged. The report also explained that this required force was
more than that required to operate the clutch of consumer
vehicles such as a Mini Cooper, a Ford F-150, and a Jeep
Wrangler. After assessing Expert’s report, Doctor still opined in
a second letter that Stone’s injury was not work-related. In
coming to this opinion, Doctor explained that the pressure of
engaging the semi-truck clutch “would be much less than what
would be expected with walking” and concluded that “[t]his
would be considered a normal activity of daily living and not an
industrial exposure.” (Emphasis added.) On April 6, 2015, Stone
1. “We state the facts and all legitimate inferences drawn
therefrom in the light most favorable to the agency’s findings.”
ABCO Enters. v. Utah State Tax Comm'n, 2009 UT 36, ¶ 2 n.1, 211
P.3d 382 (cleaned up).
20180196-CA 2 2020 UT App 53Fastenal v. Labor Commission
underwent surgery on his left foot to reconstruct a rigid cavus
deformity. 2
¶4 Thereafter, a hearing was held at which Fastenal
presented testimony from Expert. In relevant part, Expert’s
testimony outlined the same information regarding pounds of
force used in engaging a semi-truck clutch as compared to the
force required to engage the clutch of the assortment of
consumer vehicles. His testimony at the hearing, however, also
included a comparison of force among driving the semi-truck,
standing, and walking. Expert explained that the latter two
activities imposed more force, suggesting that Stone could have
developed the ulcer from one of these ordinary daily activities.
The standing-walking-driving-comparison testimony was not in
Expert’s written report.
¶5 For his part, Stone testified about driving the semi-trucks.
In pertinent part, he testified about how he used his left foot to
engage the clutch, saying, “I would use the instep 60% of the
time and use the ball of my foot 40% of the time.” Stone also
testified about his April 6, 2015 surgery. The medical records
regarding the surgery were not provided at the hearing.
¶6 After the hearing, the administrative law judge (Initial
ALJ) who presided over the hearing retired, and a new
administrative law judge (Replacement ALJ) was assigned to the
case. The Replacement ALJ issued an interim order, concluding
that legal causation had been proven and referring the matter to
the Panel to determine medical causation. The order did not
2. A cavus deformity “is an abnormal elevation of the medial
longitudinal arch of the foot. . . . The deformity is typically
flexible at first and then becomes rigid.” Cavus Foot, Pediatric
Orthopaedic Soc’y of N. Am., https://posna.org/Physician-
Education/Study-Guide/Cavus-Foot [https://perma.cc/LY92-
8GJ6].
20180196-CA 3 2020 UT App 53Fastenal v. Labor Commission
reference Expert’s testimony about the walking-standing-driving
comparison of force.
¶7 Fastenal then filed an interlocutory motion for review
with the Commission. In its motion, Fastenal argued that the
Replacement ALJ’s conclusion regarding legal causation was
incorrect, and Fastenal sought the inclusion of the omitted
evidence: Expert’s full testimony, specifically the amount of
force exerted on an individual’s feet while standing and walking,
and the medical records related to the surgery. Stone agreed that
the evidence should be included. Reasoning that Fastenal could
renew its objection “if necessary depending on the specifics of
the [P]anel’s report,” the Commission dismissed Fastenal’s
motion in its entirety. The evidence was never provided to the
Panel for its consideration of medical causation.
¶8 The Panel assessed the evidence provided to it and issued
its report. In it, the Panel noted that Stone suffered from a
preexisting condition of peripheral neuropathy, which meant
“he had a loss of protective sensation in his foot” and “was 7
times more likely to suffer a foot ulcer than the general
population.” The Panel also noted that Stone “underwent
surgery in April 2015 to help with foot realignment.” Ultimately,
the Panel determined that operating the semi-truck clutch
medically caused Stone’s pressure ulcer: “This repetitive
pressure resulted in micro trauma and eventually ulceration
secondary to [Stone’s] known peripheral neuropathy.” No party
objected to the Panel’s report. In the absence of any objection, the
Replacement ALJ adopted the Panel’s report. The Replacement
ALJ then issued updated findings, conclusions, and an order.
¶9 While Fastenal did not file an objection to the Panel’s
report, Fastenal did file a motion asking the Commission to
direct the Panel to review Expert’s testimony and the medical
documentation of Stone’s surgery. In support, Fastenal included
Doctor’s report concluding that the walking-standing-driving
comparison of force showed that pushing the semi-truck clutch
would not have caused Stone’s ulcer. Doctor also opined that the
20180196-CA 4 2020 UT App 53Fastenal v. Labor Commission
surgery was not work-related, as it was to address the cavus
deformity. The Commission denied Fastenal’s motion and
upheld the Replacement ALJ’s order, awarding Stone the
benefits. In its order, the Commission pointed out that the Panel
was aware of Stone’s April 2015 surgery, and the Commission
assessed Expert’s testimony regarding force.
¶10 Fastenal now seeks judicial review.
ISSUES AND STANDARDS OF REVIEW
¶11 There are two issues for us to decide. First, we consider
whether the Commission properly determined legal causation,
which we review for correctness. Provo City v. Utah Labor
Comm’n, 2015 UT 32, ¶ 17, 345 P.3d 1242 (“[W]e review the law
applied to these facts for correctness.”).
¶12 Then, we review whether the Commission violated
Fastenal’s right to due process. “Constitutional issues, including
questions regarding due process, are questions of law that we
review for correctness.” Salt Lake City Corp. v. Jordan River
Restoration Network, 2012 UT 84, ¶ 47, 299 P.3d 990 (cleaned up).
ANALYSIS
¶13 In order to obtain workers’ compensation benefits, it is
incumbent upon a claimant to prove that his or her injury
occurred by accident and arose out of and in the course of his or
her employment. Utah Code Ann. § 34A-2-401(1) (LexisNexis
2019). 3 Under Allen v. Industrial Commission, 729 P.2d 15 (Utah
3. The parties do not dispute whether Stone’s injury meets the
“by accident” element of a workers’ compensation claim. See
Utah Code Ann. § 34A-2-401(1) (LexisNexis 2019). Therefore, we
need not decide the issue. And because the statutory provisions
(continued…)
20180196-CA 5 2020 UT App 53Fastenal v. Labor Commission
1986), and its progeny, this requires a claimant to “establish that
the conditions or activities of his job were both the medical cause
and the legal cause of his injury.” Murray v. Utah Labor Comm’n,
2013 UT 38, ¶ 45, 308 P.3d 461; see also Allen, 729 P.2d at 25–28.
Here, we first address the Commission’s conclusion on legal
causation. Then, we turn our focus to Fastenal’s due process
claims related to medical causation.
I. Legal Causation
¶14 “If an employee does not have a preexisting condition
that causally contributed to his injury, then the medical and legal
causation requirements are one and the same, and the employee
need only prove medical causation.” Murray, 2013 UT 38, ¶ 45.
However, when an employee brings a causally contributing
preexisting condition to the equation, as is indisputably true
here, 4 the employee must meet the more stringent Allen test: “the
employment contributed something substantial to increase the
risk he already faced in everyday life because of his condition.”
Allen, 729 P.2d at 25. This heightened test “is not meant to
prevent workers with preexisting conditions from recovering
benefits.” Nyrehn v. Industrial Comm’n of Utah, 800 P.2d 330, 335
(Utah Ct. App. 1990); see also Peterson v. Labor Comm’n, 2016 UT
App 12, ¶ 12, 367 P.3d 569 (“Just because a person suffers a
preexisting condition, he or she is not disqualified from
obtaining compensation.” (cleaned up)). Rather, it “serves to
offset the preexisting condition of the employee as a likely cause
(…continued)
we cite have not changed in any material way, we cite the
current version of the code throughout this opinion for
convenience.
4. The Replacement ALJ specifically found that Stone suffered
from the preexisting condition of peripheral neuropathy. The
parties do not dispute that Stone had this causally contributing
preexisting condition.
20180196-CA 6 2020 UT App 53Fastenal v. Labor Commission
of the injury, thereby eliminating claims for impairments
resulting from a personal risk rather than exertions at work.”
Allen, 729 P.2d at 25. Therefore, “we must determine whether
this activity is objectively unusual or extraordinary” under the
totality of the circumstances. Murray, 2013 UT 38, ¶ 48 (“We
compare the activity that precipitated the employee’s injury with
the usual wear and tear and exertions of nonemployment life.”
(cleaned up)).
¶15 Repetition of a workplace activity can constitute an
objectively unusual or extraordinary exertion. See id. ¶ 51 (“Utah
courts have deemed employment activities to be ‘unusual’ or
‘extraordinary’ when they require an employee to endure
jumping, lifting great weight, or repetition.” (emphasis added));
Nyrehn, 800 P.2d at 336 (“When an accident is the climax of
repeated exertions . . . [it] is the aggregate exertion of the
repetitive exertions that establish the accident.”); see also Chase v.
Industrial Comm’n of Utah, 872 P.2d 475, 479–80 (Utah Ct. App.
1994) (holding that legal causation was met as a “result of
repetitive physical stress associated with performing machinists’
tasks for extended periods”).
¶16 For example, in Miera v. Industrial Commission of Utah, 728
P.2d 1023 (Utah 1986), our supreme court held that an
employee’s repeated “jumps into an eight-foot hole from a four-
foot platform at thirty-minute intervals constitute[d] a
considerably greater exertion than that encountered in non-
employment life and [were] therefore legally sufficient” to
establish legal causation. Id. at 1024–25. Similarly, in Stouffer
Foods Corp. v. Industrial Commission of Utah, 801 P.2d 179 (Utah
Ct. App. 1990), this court concluded that “applying repeated or
constant pressure to the grips of high-pressure hoses” was
objectively unusual or extraordinary. Id. at 183. In so holding,
this court narrowed its focus on the repetitive nature of the
activity, explaining that “while occasionally using a . . . hose may
be fairly regarded as typical of everyday life, applying repeated
or constant pressure to the grips of high-pressure hoses . . . for
hours at a time is not a typical non-employment activity.” Id.20180196-CA 7 2020 UT App 53Fastenal v. Labor Commission
(cleaned up). Finally, in Nyrehn, this court focused on the
repetitious nature of the work-related exertion as well. 800 P.2d
at 336. The employee lifted “a tub of merchandise weighing
between 15 and 40 pounds . . . 30 to 36 times a day for two and a
half months.” Id. Even though it was only a “moderately
strenuous” activity, the lifting amounted to an objectively
unusual exertion because it was performed repeatedly. Id.¶17 Stone’s employment activity meets this same standard.
Even though people are generally expected to endure some
pressure on their feet in everyday life, the period and extent of
the repeated pressure on Stone’s left foot, in the aggregate,
amounted to an unusual exertion. Stone drove a semi-truck over
an extended period of time—from April 2013 to July 2014.
Driving the semi-truck required even more force to operate the
clutch than that of an assortment of consumer vehicles. And
Stone had to drive for approximately eleven hours per day on
the days he worked. Moreover, there was testimony that Stone
used the instep of his foot to shift about 60% of the time in a
somewhat awkward angle. 5 Cf. Peterson, 2016 UT App 12, ¶¶ 15–
17 (holding that “the unusual and awkward manner in which
the employee lifted an otherwise-manageable amount of weight
resulted in an injury” and constituted an unusual or
extraordinary exertion). Analogous to the repetitious activities in
Stouffer and Nyrehn, operating the semi-truck clutch under these
repetitive circumstances was sufficient to meet the higher
standard of legal causation described in Allen. Accordingly, we
decline to disturb the Commission’s determination that legal
causation was met. 6
5. Another Fastenal employee testified at the hearing that using
the instep of the foot, rather than the ball of the foot, would be
awkward.
6. Fastenal argues that the Commission erred in not assessing the
comparative forces required to stand and walk versus that
(continued…)
20180196-CA 8 2020 UT App 53Fastenal v. Labor Commission
II. Medical Causation—Due Process
¶18 The Commission ultimately concluded that driving the
semi-truck was the medical cause of Stone’s injury. Fastenal
contends that the manner in which the Commission came to its
conclusion on medical causation violated its right to due process.
Fastenal props up this contention with a claim that it did not
receive a fair hearing based on the replacement of the Initial ALJ.
Fastenal also argues that the Commission prejudicially omitted
evidence from the Panel important to its determination of
medical causation. Finally, Fastenal argues that the Commission
(…continued)
required to operate the semi-truck’s clutch. We disagree. First,
the Commission noted the amount of force required to engage a
semi-truck clutch exceeded that of vehicles’ clutches typically
used in everyday non-employment life. The Commission also
noted the repetition and awkwardness of the activity, which
would be different from everyday life. And importantly here, it
was not the amount of force but the repetitiveness and
awkwardness of the activity that were the key factors. Although
Fastenal is correct that the proper analysis is a totality of the
circumstances test in assessing the workplace injury, see Murray
v. Utah Labor Comm’n, 2013 UT 38, ¶¶ 47–48, 308 P.3d 461, the
Commission is not required to compare every activity offered by
the parties in its analysis of whether the exertion is unusual or
extraordinary; rather, it may focus on apt comparisons, as it did
here, see id. ¶ 53 (focusing on apt comparisons of everyday life to
the individual’s boating activity, such as carrying luggage
heavier than the individual’s belt and life jacket and
encountering bumpy rides in planes or buses similar to the small
wave that rocked the individual’s boat). Requiring every
comparison would allow any party to complain merely because
the Commission did not adopt that party’s desired comparisons,
and the Commission could be stuck in a never-ending chasm of
required analogies.
20180196-CA 9 2020 UT App 53Fastenal v. Labor Commission
erroneously asserted that the “Panel consisted of experts in
force.”
¶19 “At a minimum, due process requires timely and
adequate notice and an opportunity to be heard in a meaningful
way.” Salt Lake City Corp. v. Jordan River Restoration Network, 2012
UT 84, ¶ 50, 299 P.3d 990 (cleaned up). “Due process is flexible
and, being based on the concept of fairness, should afford the
procedural protections that the given situation demands.” Dairy
Product Services, Inc. v. City of Wellsville, 2000 UT 81, ¶ 49, 13 P.3d
581 (cleaned up).
¶20 In the context of Labor Commission adjudications, “the
Commission is afforded broad discretion in determining how
best to conduct its inquiry into each case.” JP’s Landscaping v.
Labor Comm’n, 2017 UT App 59, ¶ 48, 397 P.3d 728 (cleaned up).
“In this regard, the Commission ‘may make its investigation in
such manner as in its judgment is best calculated to ascertain the
substantial rights of the parties and to carry out justly the spirit
of the Workers’ Compensation Act.’” Id. (quoting Utah Code
Ann. § 34A-2-802(1)) (cleaned up). And “while principles of due
process extend to administrative hearings, it is well established
that such hearings need not have all the formality of judicial
procedure.” Nelson v. City of Orem, 2013 UT 53, ¶ 36, 309 P.3d 237(cleaned up). Indeed, 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.” Foye v. Labor
Comm’n, 2018 UT App 124, ¶ 19, 428 P.3d 26 (cleaned up); see also
Utah Code Ann. § 63G-4-403(4) (LexisNexis 2019). With this legal
framework in mind, we address Fastenal’s arguments in turn.
A. ALJ Replacement
¶21 Fastenal claims that the replacement of the Initial ALJ was
unfair because the Replacement ALJ did not review the hearing
transcript. Fastenal’s only support for this claim is that the
20180196-CA 10 2020 UT App 53Fastenal v. Labor Commission
Replacement ALJ did not mention Expert or his testimony in the
interim order to the Panel. This argument is unpersuasive.
¶22 To begin with, Fastenal’s argument is contrary to
precedent. See Utah Auto Auction v. Labor Comm’n, 2008 UT App
293, ¶¶ 16–17, 191 P.3d 1252 (holding that the assignment of a
workers’ compensation claim to a new ALJ upon the retirement
of another ALJ who presided over the initial hearing did not
deny a party its right to due process). In Utah Auto Auction, this
court concluded that a materially indistinguishable argument
was “without merit because the Commission is the final body to
review the ALJ’s decision and does so without the benefit of
having been present at the original hearing.” Id. ¶ 17. Fastenal
“is appealing from the Commission’s decision, not the
[Replacement] ALJ’s decision; the Commission had the benefit of
the full record at the time it reviewed this case; and without any
indication to conclude otherwise, we presume that the
Commission did in fact review the record.” See id. Except here
we don’t even need to resort to this presumption. In its final
order, the Commission explicitly addressed the Expert’s hearing
testimony that Fastenal complains was not mentioned by the
Replacement ALJ. Consequently, Fastenal’s argument is
unavailing.
¶23 To add to this, the Administrative Procedure Act cuts
against Fastenal’s argument. It specifically allows for the
substitution of administrative law judges and other presiding
officers in adjudicative proceedings: “If fairness to the parties is
not compromised, an agency may substitute one presiding
officer for another during any proceeding.” Utah Code Ann.
§ 63G-4-103(1)(h)(ii). And the record does not support Fastenal’s
claim that fairness was compromised by the substitution.
¶24 And last, but not least, the facts of this case undermine
Fastenal’s argument as well. In his interim order to the Panel, the
Replacement ALJ included a footnote explicitly stating that he
had reviewed the hearing record. Contrary to Fastenal’s
assertion, the Replacement ALJ in fact did refer to Expert in the
20180196-CA 11 2020 UT App 53Fastenal v. Labor Commission
order—specifically Expert’s testimony about the sixty-seven
pounds of pressure required to engage the semi-truck clutch,
which exceeded that of comparison consumer vehicles. The
Commission also noted that the Replacement ALJ’s order
included “testimony of Fastenal’s expert witness.” Fastenal
points out that the same evidence referenced by the Replacement
ALJ is in Expert’s report. But simply pointing this out does not
meet Fastenal’s burden of showing that the replacement caused
Fastenal substantial prejudice. See id. § 63G-4-403(4). In short,
Fastenal has not proven a due process violation based on the fact
that the Replacement ALJ merely did not mention the particular
piece of testimony that Fastenal wishes.
B. Omitted Evidence
¶25 Next, Fastenal maintains that its constitutional due
process rights were violated by the Replacement ALJ not
expressly directing the Panel to consider Expert’s hearing
testimony on forces experienced by people when walking and
standing. As outlined, see supra ¶¶ 6–7, before the Panel
conducted its review of the case, Fastenal filed an interlocutory
motion for review, which attacked the Replacement ALJ’s
conclusion regarding legal causation and sought inclusion of
two things: Expert’s full testimony regarding force exerted on an
individual’s feet while standing and walking and medical
records of Stone’s surgery. The motion for review was denied,
partially on the basis that depending on how the case
progressed, the issues raised might very well become moot. The
Panel then undertook its review and issued a report. As the
Replacement ALJ noted in his subsequent order, Fastenal did not
object to the Panel’s report: “None of the parties filed written
objections to the . . . [P]anel report.”
¶26 Fastenal does not explain why no objection was filed,
which seems odd in the context of the claims made before us.
Here, the applicable statutory and rule scheme provides a
specific process for Fastenal to address the issues it raises. But
Fastenal has chosen not to employ that process at all.
20180196-CA 12 2020 UT App 53Fastenal v. Labor Commission
Nevertheless, Fastenal claims a constitutional lack of due
process. We reject this attempt.
¶27 Section 34A-2-601(2)(d)(ii) of the Utah Code expressly
provides that parties may file objections to a medical panel
report with the ALJ. And the next subsection states, “If no written
objection is filed within the period described in Subsection
(2)(d)(ii), the report is considered admitted in evidence.” Utah
Code Ann. § 34A-2-601(2)(d)(iii). Furthermore, rule R602-2-
2(B)(4) of the Utah Administrative Code expressly provides that
the objection can request that a medical panel clarify a medical
panel report or ask an ALJ to have a medical panel consider new
conflicting medical evidence. See also, e.g., Right Way Trucking,
LLC v. Labor Comm’n, 2015 UT App 210, ¶¶ 10–20, 357 P.3d 1024(demonstrating that objections as to whether a medical panel
should review certain documents are submitted to the ALJ).
Here, medical records—specifically those related to Stone’s 2015
surgery—could have been addressed by way of an objection
submitted to the Replacement ALJ, but Fastenal did not avail
itself of that process. Likewise, as to consideration of Expert’s
hearing testimony, Fastenal could have attempted to seek a
clarification of the Panel’s report, but again, it did not. Instead of
asking the Replacement ALJ, Fastenal incorrectly attempted to
ask the Commission to order the Panel to review these pieces of
evidence. Thus, Fastenal’s procedural complaints regarding the
omitted evidence are unfounded because they should have been
addressed in an objection submitted to the Replacement ALJ.
¶28 Additionally, the Commission is the ultimate factfinder
endowed with the prerogative and duty to consider all the
evidence. See Utah Auto Auction, 2008 UT App 293, ¶ 17; see also,
e.g., Bade-Brown v. Labor Comm’n, 2016 UT App 65, ¶ 19, 372 P.3d
44 (“It is the province of the Commission—not the medical
panel—to view all the evidence submitted as a whole and then
make an appropriate determination . . . that substantial evidence
supported one determination more than another.” (cleaned up));
Danny’s Drywall v. Labor Comm’n, 2014 UT App 277, ¶ 14, 339
P.3d 624 (“It is the prerogative and the duty of the Commission
20180196-CA 13 2020 UT App 53Fastenal v. Labor 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.”
(cleaned up)). In Bade-Brown, we addressed a petitioner’s
argument that “the ALJ abused its discretion by admitting the
medical panel report into evidence despite glaring deficiencies in
the report.” 2016 UT App 65, ¶ 6. We explained that “the
medical panel’s role is to assist the Commission by evaluating
medical evidence and advising the Commission with respect to
its ultimate fact-finding responsibility.” Id. ¶ 12 (cleaned up). We
further clarified that not all objections “are of sufficient
significance to justify the time and expense” of the requested
remedy. Id. ¶ 14. In rejecting the petitioner’s argument,
we reasoned that “the Commission in essence concluded that
the medical panel’s flawed [maximum medical improvement]
finding was harmless because the preponderance of the evidence
still indicated” that the petitioner was not entitled to benefits.
Id. ¶ 16.
¶29 And here, the Commission assessed and weighed all
the evidence in coming to its conclusion that Stone’s
work activity medically caused his injury. The Commission
explicitly addressed Expert’s testimony regarding force. 7 It
also accurately explained that the Panel was aware of Stone’s
April 2015 surgery. Indeed, the Panel specifically noted that
Stone “underwent surgery in April 2015 to help with foot
realignment.”
7. The Panel also had Doctor’s second letter in which he noted
that the pressure of engaging the semi-truck clutch “would be
much less than what would be expected with walking.” The
Panel was also aware of Expert’s report including the
comparisons of force required to operate the different clutches.
While this report did not include the exact details of the pounds
of force involved in walking and standing, it did bring the issue
of force to the Panel’s attention.
20180196-CA 14 2020 UT App 53Fastenal v. Labor Commission
¶30 Fastenal does not contend that there was any evidence
that it could not bring before the Replacement ALJ or the
Commission. Nor does Fastenal claim that there were any
arguments it was precluded from making. And when these
issues were presented to the Commission, the Commission
determined that even if the Panel would have had the
information Fastenal claims it should have had, it would not
have changed the outcome. Accordingly, under these
circumstances, we perceive no due process deprivation; these
proceedings provided Fastenal a sufficient opportunity to be
heard, given the Commission’s “broad discretion in determining
how best to conduct its inquiry into each case.” See JP’s
Landscaping, 2017 UT App 59, ¶ 48 (cleaned up). 8
C. Panel Expertise
¶31 Fastenal also argues that the Commission erroneously
asserted that the “Panel consisted of experts in force.” But
more precisely, the Commission said that the members of
the Panel, “as trained experts, were aware of the difference
in exertion between standing and walking and the repetitive
use of one’s foot to engage a [semi-]truck clutch.” This
distinction is meaningful. And we have no reason to suspect
that the Commission’s statement is inaccurate, where one
Panel member is an expert in occupational medicine, 9 and the
8. Moreover, Fastenal does not point to specific details in the
surgical report that would have affected the Panel’s analysis,
especially where the Panel was already aware of Stone’s April
2015 surgery. Thus, as to that piece of evidence, Fastenal does
not meet its burden of showing substantial prejudice. See Utah
Code Ann. § 63G-4-403(4) (LexisNexis 2019).
9. Occupational medicine “is a board-certified specialty . . . that
focuses on the diagnosis and treatment of work-related injuries
and illnesses. . . . [Specialists] are the leading experts in the
complex web of factors that affect health in the workplace,
(continued…)
20180196-CA 15 2020 UT App 53Fastenal v. Labor Commission
other is a sports-medicine specialist. 10 Indeed, the Panel
report recites, and Fastenal has not disputed, that one doctor “is
a board certified occupational medicine physician with
experience in injuries and illnesses sustained in the industrial
setting” and that the other “is board certified in internal
medicine with a specialty in sports medicine.” We simply reject
the premise that medical doctors, particularly those who
specialize in occupational medicine or sports medicine, are
incompetent to opine as to the operation of the human body and
to consider activities of the workplace in comparison to walking
or standing.
¶32 In any event, the statute does not require the members of
the panel to be experts in force; it requires them “to specializ[e]
in the treatment of the disease or condition involved in the
claim.” Utah Code Ann. § 34A-2-601(1)(c); accord Foye, 2018 UT
App 124, ¶ 21. Thus, because the members of the Panel easily fit
this bill, we see no due process violation, as complained of by
Fastenal, especially given the Commission’s explicit review of
the evidence of force in its final order. See Bade-Brown, 2016 UT
App 65, ¶ 19.
(…continued)
helping all types of organizations ensure the health of their
employees, productivity of the workplace, and advancement of
the overall economy.” What is Occupational Medicine?, Am. Coll.
of Occupational & Envtl. Med., http://acoem.org/Careers/What-
Is-OEM [https://perma.cc/9GGL-UD6M].
10. Sports medicine involves “significant specialized training in
both the treatment and prevention of illness and injury. . . .
Sports medicine physicians specialize in the non-operative
treatment of musculoskeletal conditions.” What is a Sports
Medicine Physician – Sports Medicine Today, Am. Med. Soc’y for
Sports Med., https://www.sportsmedtoday.com/what-is-a-
sports-medicine-physician.htm [https://perma.cc/J5VA-JYQY].
20180196-CA 16 2020 UT App 53Fastenal v. Labor Commission
CONCLUSION
¶33 We hold that the Commission’s determination of legal
causation was correct, and we have discerned no violation of
Fastenal’s right to due process on this record. Accordingly, we
decline to disturb the Commission’s order.
20180196-CA 17 2020 UT App 53