Nucor v. Labor Commission

2023 UT App 164
THE UTAH C OURT OF APPEALS
NUCOR AND A CE A MERICAN I NSURANCE C OMPANY ,
Petitioners,
v.
LABOR C OMMISSION AND JAY NORMAN F ONNESBECK,
Respondents.
Opinion
No. 20220597-CA
Filed December 29, 2023
Original Proceeding in this Court
Mark R. Sumsion and Lori L. Hansen,
Attorneys for Petitioners
Marlin J. Grant, Attorney for Respondent
Jay Norman Fonnesbeck
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES GREGORY K. O RME and DAVID N. M ORTENSEN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	For more than twenty years, Nucor employed Jay Norman
Fonnesbeck as a steel worker. During Fonnesbeck’s employment,
he developed arthritis, sleep apnea, and serious pulmonary and
respiratory issues allegedly related to occupational exposure, as
well as hernias following an alleged industrial accident in 2010.
¶2 	Fonnesbeck sought workers’ compensation benefits for the
medical issues he asserts arose from occupational exposure
during his time at Nucor and the industrial accident. Following a
hearing, an administrative law judge (the ALJ) first referred the
medical aspects of Fonnesbeck’s claim to a medical panel to
address 	medical 	causation, 	and 	later 	to 	a 	second, 	different
medical panel after Fonnesbeck objected to the first panel’s report.

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The ALJ adopted the findings of the second medical panel,
concluded that Fonnesbeck had met his burden to prove medical
causation, and awarded him partial benefits, a determination that
was 	subsequently 	upheld 	by 	the 	Labor 	Commission 	(the
Commission). 	Nucor 	petitioned 	for 	judicial 	review 	of 	the
Commission’s determination that sufficient grounds exist to
support a rejection of the first medical panel’s report and referral
to a second medical panel.
¶3 	As 	discussed 	below, 	we 	uphold 	the 	Commission’s
determination because there is a sufficient basis in the record to
support that action.0F
1 Accordingly, we decline to disturb the
Commission’s 	award 	of 	partial 	medical 	benefits 	related 	to
Fonnesbeck’s occupational exposure.
BACKGROUND
¶4 	Fonnesbeck worked for Nucor as a steel worker for twenty-
one years, until December 2015. Due to alleged occupational
exposure to lead and a host of other toxic metals during his
employment, 	Fonnesbeck 	developed 	rheumatoid 	arthritis,
pulmonary 	issues/interstitial 	lung 	disease, 	reactive 	airway
disease, and obstructive sleep apnea. Also, in July 2010, while
Fonnesbeck was working, he was struck by a mill stand while
operating a crane. After the accident, Fonnesbeck was taken to the
emergency room and diagnosed with left elbow contusion, right
hip contusion, and hematuria. In 2017, some years after he left
1. Here, we address each of the reasons the Commission put forth
to support the rejection of the first panel report and appointment
of a second panel. However, given the deference an appellate
court owes to an administrative decision like this, we note that
this 	court 	will 	likely 	decline 	to 	disturb 	a 	decision 	by 	the
Commission to reject a medical panel report, as long as any one of
the 	reasons 	for 	the 	rejection 	provided 	by 	the 	Commission
establishes a reasonable basis for the decision.

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Nucor’s employ, Fonnesbeck filed claims for medical benefits
under 	the 	Utah 	Workers’ 	Compensation 	Act 	and 	the 	Utah
Occupational 	Disease 	Act, 	and 	his 	case 	proceeded 	to 	an
evidentiary hearing before an ALJ.
¶5 	Following the hearing, the ALJ referred the claim to a
medical panel to address medical causation. The first medical
panel 	(the 	first 	panel) 	consisted 	of 	two 	physicians—an
occupational medicine doctor and a general surgeon. The first
panel 	reviewed 	nearly 	1,000 	pages 	of 	medical 	records 	and
Fonnesbeck’s imaging studies, but due to the pandemic, the first
panel did not interview or personally examine Fonnesbeck.1F
2 At
no time during the first panel’s evaluation did the ALJ submit
questions or request information from the panel members about
their qualifications. During its review and evaluation, the chair of
the first panel notified the ALJ that the panel “may or may not
need to get another specialist.”
¶6 	The 	first 	panel’s 	report 	concluded 	that 	Fonnesbeck’s
ailments were not causally linked to his alleged occupational
exposure or his industrial accident. Fonnesbeck objected to the
first panel’s report based on the first panel’s allegedly deficient
credentials under Foye v. Labor Commission, 2018 UT App 124, 428
P.3d 	26, 	abrogated 	on 	other 	grounds 	by 	Gamez v. 	Utah 	Labor
Commission, 2022 UT 20, 511 P.3d 1145,2F
3 the failure of the first
2. We recognize and appreciate that the first panel conducted its
examination process during the COVID-19 pandemic; however,
the first panel did have the option to conduct a virtual interview
or examination of Fonnesbeck and chose not to do so. The second
panel conducted a virtual interview.
3. Under this standard, all medical panel members were required
to be specialists. See Foye v. Labor Comm’n, 2018 UT App 124, ¶ 22,
428 P.3d (“[T]he statute’s plain language requires that the panel
(continued…)

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panel to conduct any in-person or virtual examination, and the
first panel’s failure to answer all questions posed by the ALJ, some
of which concerned Fonnesbeck’s current ability to sit, stand,
walk, kneel, climb stairs, and bend/stoop.
¶7 	Nucor responded to Fonnesbeck’s objection, pointing out
that the first panel included an occupational medicine specialist
who had extensive experience in toxicology and a general surgeon
familiar with hernias. Fonnesbeck replied, asserting that the first
panel lacked a pulmonology specialist necessary to assess the
cause of his exposure injuries. Based on Fonnesbeck’s objection—
but 	without 	asking 	the 	first 	panel 	to 	report 	its 	members’
qualifications, address the lack of an examination, or explain why
it did not answer all questions—the ALJ excluded the first panel’s
report and referred the matter to a second medical panel (the
second panel) to address causality. Specifically, the ALJ stated in
her order:
After careful review, the Court has determined that
the panel should have conducted at minimum a
virtual medical examination, it does not appear that
the medical panel had the requisite specialists as
required by Foye[,] and the panel failed to address
the Court’s questions.
Since assigning this matter to [the chair of the
first panel], he has represented to the Court that he
is currently not conducting any in-person or virtual
medical examinations. The Court finds that there
are deficiencies that prevent the report from being
admitted into the evidentiary record. Consequently,
consist of physicians who specialize in ‘treatment of the disease
or 	condition’ 	at 	issue 	in 	the 	case.” 	(quoting 	Utah 	Code
§ 34A-2-601(1)(c)), abrogated on other grounds by Gamez v. Utah
Labor Comm’n, 2022 UT 20, 511 P.3d 1145.

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the Court will appoint a new panel to address the
medical issues in this matter.
¶8 	In February 2021, the second panel produced its report,
which differed from the first panel’s report in the causality
findings. 	The 	second 	panel’s 	evaluative 	approach 	was 	also
different, i.e., the second panel consisted of an occupational
medicine specialist, a medical toxicologist, and a general surgeon;
the second panel conducted a virtual examination of Fonnesbeck
when the first panel refused to do so; and the second panel
answered more, but still not all, of the ALJ’s questions (some
questions were deemed inapplicable per the instructions to both
panels). The second panel determined that while Fonnesbeck’s
hernias were not industrially related, 45% of his rheumatoid
arthritis, 	pulmonary 	issues/interstitial 	lung 	disease, 	reactive
airway disease, and obstructive sleep apnea were caused by his
occupational exposure, and it recommended that Fonnesbeck be
awarded partial benefits.
¶9 	Both Fonnesbeck and Nucor initially objected to the second
panel’s report, though for different reasons. The parties argued
back and forth about why the second panel’s report was faulty.
The ALJ supplied the parties with the amended panel report and
advised them of their right to object.
¶10 	The ALJ subsequently issued Findings of Fact, Conclusions
of Law, and an Order to Pay Subsistence Benefits, adopting the
conclusions 	of 	the 	second 	panel 	over 	Nucor’s 	objections.
Consistent 	with 	the 	second 	panel’s 	findings 	and
recommendation, the ALJ determined that Fonnesbeck had met
his burden to prove medical causation related to his occupational
exposure injuries and awarded him partial benefits. In the ALJ’s
final order, she addressed the various objections to the first panel:
[T]he Court issued an Order rejecting the [first]
medical panel report on the basis that the panel did
not conduct[,] at a minimum[,] a virtual medical

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examination. Further, it did not appear that the
medical 	panel 	had 	the 	requisite 	specialists 	as
required by Foye[,] and the [first] panel failed to
address the Court’s questions. Lastly, the Court was
unable to refer the matter back to [the chair of the
first panel] because he had informed the Court that
he was not conducting any in-person or virtual
medical examinations.
¶11 	Nucor asked the Commission to review the ALJ’s partial
award of benefits, and Fonnesbeck filed a separate motion for
review.
¶12 	The Commission agreed with the ALJ’s decision to reject
the first panel’s report and refer the matter to the second panel:
The [second] medical panel included experts in
toxicology 	and 	surgical 	treatment 	of 	traumatic
injuries. The [second] panel also virtually examined
Mr. Fonnesbeck via videoconference and produced
reports that sufficiently answered the questions
posed to the panel. The [second] panel determined
that the 2010 work accident resulted in abrasions
and contusions, but did not medically cause or
worsen Mr. Fonnesbeck’s hernias or any internal
injury. 	The 	[second] 	panel 	opined 	that 	Mr.
Fonnesbeck’s 	occupational 	exposure 	medically
caused or worsened his rheumatoid arthritis with
interstitial lung disease, reactive airway disease and
obstructive sleep apnea. The [second] panel also
outlined Mr. Fonnesbeck’s necessary medical care
and his functional limitations.
¶13 	The Commission reasoned,
The courts have recognized that referral to a medical
panel 	is 	helpful 	in 	considering 	the 	medical

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complexities of workers’ compensation cases. The
Commission concurs with [the ALJ’s] decision to
refer the medical aspects of Mr. Fonnesbeck’s claim
to a medical panel. . . . The Commission . . . agrees
with [the ALJ] that [the first panel] did not only
decline to answer questions because they were
inapplicable. . . . [T]he first panel [also] failed to offer
any analysis or answer regarding the factors that
did cause [Fonnesbeck’s] conditions. . . . These
differences, and the fact that the first medical panel
refused to meet with Mr. Fonnesbeck even virtually
by videoconference, are sufficient grounds for [the
ALJ] to reject the first panel’s report and refer the
medical aspects of the claim to the new panel.
The Commission was “not convinced” that it “was improper for
[the ALJ] to reject the first panel’s report and refer the medical
issues of this case to the [second] medical panel.” Because the
Commission concurred (1) with the ALJ’s conclusions regarding
the medical cause of Fonnesbeck’s conditions, “including the
worsening of his respiratory problems, obstructive sleep apnea,
and 	rheumatoid 	arthritis, 	due, 	in 	part, 	to 	his 	occupational
exposure at Nucor,” and (2) with the ALJ’s determination that
Fonnesbeck had not established “a medical causal connection
between his hernias and the 2010 work accident,” the Commission
agreed with the ALJ’s conclusions regarding the medical cause of
Fonnesbeck’s respiratory conditions. Nucor now seeks judicial
review of the Commission’s determination.
ISSUE AND STANDARD OF REVIEW
¶14 	Nucor challenges the Commission’s decision to uphold the
ALJ’s decision to “reject the first panel’s report and refer the
medical issues of this case to the new medical panel.” The issue
before 	us 	is 	whether 	the 	record 	sufficiently 	supports 	the
Commission’s decision.

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¶15 	“We 	generally 	review 	the 	Commission’s 	decisions
regarding appointment of medical panels for abuse of discretion,
based on instructive language in the relevant statute.” Graphic
Packaging Int’l Inc. v. Labor Comm’n, 2021 UT App 82, ¶ 21, 495 P.3d
228; see also BASF Corp. v. Labor Comm’n, 2023 UT App 108, ¶ 23,
537 P.3d 291. Notably, “the governing statute provides that the
Commission may refer the medical aspects of any case involving
a claim for disability by accident to a medical panel appointed by
an ALJ. The statute’s use of the word may is significant” and
“suggests 	that 	the 	legislature 	has 	granted 	the 	Commission
discretionary power over the appointment of medical panels.”
Graphic Packaging, 2021 UT App 82, ¶ 21 (quotation simplified)
(emphasis added). “[A] discretionary decision involves a question
with a range of ‘acceptable’ answers, some better than others, and
the agency . . . is free to choose from among this range without
regard to what an appellate court thinks is the ‘best’ answer.”
Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 30, 308 P.3d 461.
When applying this standard, “we will reverse only if there is no
reasonable basis for the decision.” Graphic Packaging, 2021 UT App
82, ¶ 21 (quotation simplified).
ANALYSIS
I. Medical Panel Specialist Requirements
¶16 	Section 34A-2-601(1)(c) of the Utah Code states that “[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 current interpretation of this
provision under Gamez v. Utah Labor Commission, 2022 UT 20, 511
P.3d 	1145, 	no 	longer 	requires 	that 	all 	panel 	members 	be
specialists, 	as 	was 	previously 	required 	under 	Foye 	v. 	Labor
Commission, 2018 UT App 124, 428 P.3d 26, abrogated on other
grounds by Gamez, 2022 UT 20.

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¶17 	However, the Utah Supreme Court’s decision in Gamez was
not issued until after the ALJ convened both the first panel (2020)
and the second panel (2021), when the Foye standard was still
applicable. Under Foye, a medical panel was required to “consist
of physicians who specialize in the treatment of the disease or
condition at issue” in Fonnesbeck’s case. See 2018 UT App 124,
¶ 22 (quotation simplified). But as is clear from the record, the first
panel consisted of only two panelists: an occupational disease
specialist and a general surgeon. Therefore, the Commission acted
within its discretion to uphold the ALJ’s rejection of the first
panel’s report and appointment of the second panel to address
Fonnesbeck’s medical issues. We agree with the Commission that
under section 34A-2-601(1)(c) and Foye, for the first panel to
accurately assess Fonnesbeck’s conditions—including chronic
lung, muscular, and sleep-related issues he alleged stemmed from
occupational exposure to various toxins at the steel mill, and a
hernia 	he 	alleged 	resulted 	from 	a 	documented 	workplace
accident—the first panel would have needed to add additional
specialists to its panel; i.e., “it does not appear that the [first]
medical panel had the requisite specialists as required by Foye.”
In fact, as mentioned, the first panel even acknowledged to the
ALJ that it might need other specialists. When the second panel
convened, its panelists consisted of an occupational medicine
specialist, a general surgeon, and a toxicologist, a composition that
further supports the ALJ’s determination that the first panel did
not have the requisite specialists required under the law.
¶18 	The 	Commission 	agreed 	with 	the 	ALJ’s 	decision 	to
convene a second panel, noting that “[t]he new medical panel
included experts in toxicology and surgical treatment of traumatic
injuries.” Based on the evidence set forth in the record, we
determine that the Commission did not abuse its discretion when
it agreed with the ALJ, as the ALJ had extensive discretion to
determine whether the first panel’s qualifications were or were
not sufficient under Foye. This reason alone—the first panel’s
insufficient qualifications—establishes a reasonable basis in the

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record for the Commission to sanction the appointment of the
second panel.
II. Virtual or In-Person Examination
¶19 	As 	discussed, 	the 	Commission 	has 	the 	discretion 	to
appoint more than one medical panel. See Graphic Packaging Int’l
Inc. v. Labor Comm’n, 2021 UT App 82, ¶ 24, 495 P.3d 228 (“[T]he
best reading of [section 34A-2-601(1)(a) of the Utah Code], and the
one that harmonizes the entire subsection, is the one giving the
Commission discretion regarding medical panel appointments,
including the discretion to decline to appoint one, as well as the
discretion to appoint more than one panel if necessary.”).
¶20 	The ALJ posed a number of questions to the first panel
regarding Fonnesbeck’s current ability to sit, stand, walk, kneel,
climb stairs, and bend/stoop. Answering these questions required
a current virtual or in-person examination of Fonnesbeck. Yet the
first panel failed to conduct any examination of Fonnesbeck and
simply declined to respond to these questions in its report. And
while in-person examinations were complicated by the COVID-
19 pandemic, notice was sent to the parties indicating that ALJs
retained discretion to require employees to submit to a medical
examination under section 34A-2-602(1) of the Utah Code, and
that medical panel examinations would be performed virtually
during the COVID-19 pandemic.
¶21 	Despite this discretionary authority, the first panel refused
to conduct any sort of interview or examination of Fonnesbeck:
“A video or audio evaluation would not alter our opinions in this
case . . . .” In contrast, the second panel conducted a virtual
evaluation of Fonnesbeck and was able to answer the ALJ’s
questions concerning Fonnesbeck’s current physical limitations:
the 	second 	panel 	“virtually 	examined 	Mr. 	Fonnesbeck 	via
videoconference and produced reports that sufficiently answered
the 	questions 	posed 	to 	the 	panel.” 	This 	reason 	alone—the
complete lack of exam due to the first panel’s refusal to conduct

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one—establishes 	a 	reasonable 	basis 	in 	the 	record 	for 	the
Commission to sanction the appointment of the second panel.
¶22 	Based on the record before us, we conclude that the
Commission did not abuse its discretion when it upheld the ALJ’s
decision to refer the matter to the second panel.
CONCLUSION
¶23 	We agree with the Commission that the ALJ did not abuse
her discretion in concluding that the first panel should have
included another specialist to be compliant under the then-
controlling precedent of Foye. In addition, the first panel did not
conduct any examination of Fonnesbeck and indicated it would
not do so, which resulted in the panel’s failure to answer all the
submitted 	questions, 	and 	its 	failure 	to 	offer 	any 	analysis
regarding the factors that did cause Fonnesbeck’s conditions.
These reasons, when considered separately or together, establish
a reasonable basis in the record for the Commission to sanction
the appointment of the second panel.
¶24 	Nucor has not persuaded us that the Commission abused
its 	discretion. 	Accordingly, 	we 	decline 	to 	disturb 	the
Commission’s decision.