Horning v. Labor Commission

2023 UT App 30
THE UTAH COURT OF APPEALS
FRAN HORNING,
Petitioner,
v.
LABOR COMMISSION, AEROSCAPE,
AND AMERICAN LIBERTY INSURANCE,
Respondents.
Opinion
No. 20210562-CA
Filed April 6, 2023
Original Proceeding in this Court
Gary E. Atkin and K. Dawn Atkin, Attorneys
for Petitioner
Chad P. Curtis and Victor M. Perri, Attorneys for
Respondents Aeroscape and American
Liberty Insurance
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGE RYAN D. TENNEY and JUSTICE JILL M. POHLMAN concurred.1
MORTENSEN, Judge:
¶1 Fran Horning lost consciousness at work when a weed
trimmer engine fell off a shelf and struck him in the head. He
complained of continuing psychological issues long after the
accident. He received workers’ compensation benefits for some
time, but when his employer cut off the benefits, Horning sought
a hearing. The administrative law judge (ALJ), relying on a
1. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).

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20210562-CA 2 2023 UT App 30
medical panel’s report, denied ongoing benefits. Horning
challenged the qualifications of the medical panel members, but
the ALJ overruled the objection. Horning then sought review
before the Utah Labor Commission (Commission), which also
denied ongoing benefits. Horning now seeks judicial review of the
Commission’s order, and we decline to disturb it.
BACKGROUND
¶2 In early August 2015, while working for Aeroscape,
Horning was injured when a weed trimmer engine weighing
roughly four pounds fell about three feet from a shelf and struck
him on the head. He briefly lost consciousness and was taken by
ambulance to the hospital, where he stayed overnight. While in
the hospital, “he was diagnosed with a closed-head injury with
symptomatic concussion.”
¶3 Horning returned to work part-time a month or so later,
but he found it difficult to concentrate, and workplace noise
would trigger headaches and mental fatigue. He also would
stumble around at times while working. Horning was released
from work on October 16, 2015. He received temporary total
disability compensation from October 17, 2015, to June 19, 2016.
¶4 In January 2016, Horning began treatment for post-
concussion syndrome and “underwent various treatments to treat
his symptoms, including sleep problems, headaches, and
depression.” In March 2016, Horning was diagnosed “with major
depression and anxiety,” and his doctor recommended that
Horning attend “psychotherapy sessions,” which Horning
attended for about seven months. Around this time, Horning was
also diagnosed with post-traumatic stress disorder (PTSD).
¶5 Aeroscape’s medical consultant (Dr. Mattingly) evaluated
Horning in June 2016 and opined that Horning had “sustained a
concussion and cervical-spine strain as a result of the work

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20210562-CA 3 2023 UT App 30
accident” but noted that the “mechanism of injury [was] not
consistent with causing PTSD, anxiety or depression.” Another
Aeroscape medical consultant (Dr. Houston) concluded that
“Horning did not develop a persistent neurocognitive disorder or
PTSD” and that he had “non-industrial depression and anxiety.”
Based on the opinions of these two doctors, Aeroscape ceased
providing Horning with workers’ compensation benefits.
¶6 Horning filed an application for a formal hearing before an
ALJ. At the hearing, the parties agreed that park surveillance
video taken of Horning after the accident would not be
introduced as evidence. The parties also stipulated that two pages
of the medical record that contained a description of what was
seen in the surveillance video would be stricken from the record.
These two pages had formed an addendum to Dr. Houston’s
report. But Horning did not object to at least one other reference
to the surveillance video being included in the record, because it
was “far more general” and shorter than the other references. In
addition to mentioning the dates and duration of the video
recordings, this included reference stated,
[Dr. Houston’s] opinion is [that Horning’s] video
presentation does not appear to be consistent with
his medical complaints including physical, balance,
and mental as described in the medical record for
the same corresponding time period March 2016
through July 2016. He seems to move and ambulate
with coordinated agility at an up-tempo pace
whenever required. There is no visible evidence of
pain behavior, balance problems, fatigue, depressed
affect, anxious behavior, or cognitive confusion. He
visibly engages with others in a pleasant way and
most notably seems to be able to sustain
concentration, persistence and pace for prolonged
periods when filming his children’s baseball and
soccer games.

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¶7 The ALJ ordered that the case be referred to a medical
panel because it was “clear that there [were] conflicting medical
opinions regarding the medical causation of [Horning’s] ongoing
medical and mental health issues.”
¶8 The ALJ appointed Dr. Shawn Smith and Dr. Sean Biggs to
the medical panel. The panel “reviewed all of the medical
records” it had received. Apparently, the two pages describing
the excluded video surveillance were included in the materials
submitted to the panel, as evidenced by three statements included
in the report. First,
Dr. Mattingly reviewed video surveillance and
noted that [Horning] was at a park and soccer game
for two hours, standing mostly, walking, [and]
taking pictures, without any signs of being off
balance. He was seen leaning over, squatting down,
bending over and assuming other positions without
difficulty. Other video episodes were reviewed
without any signs of problems with balance,
standing or talking for long periods of time.
Second,
Dr. Houston reviewed surveillance video and noted
that there was no visible evidence of pain behavior,
balance problems, fatigue, depressed affect, anxious
behavior or cognitive confusion. [Horning] seemed
able to sustain concentration, persistence and pace
for prolonged periods when filming his children’s
baseball and soccer games.[2]
2. The language of the second statement parrots that of the
description of the video surveillance that Horning did not object
to being included in the record, so the second reference could
(continued…)

Horning v. Labor Commission
20210562-CA 5 2023 UT App 30
Third,
Dr. Houston wrote an addendum in response to
questions related to surveillance video and
[Horning’s] deposition. Dr. Houston noted that
[Horning] was able to get out of the passenger side
of a car without difficulty. [Horning] had no
difficulty fishing, flexing at the waist and standing
erect, bending over a pier railing, or kicking out the
right leg in a quick side-sweeping motion without
losing his balance.
¶9 After a comprehensive review of the medical record, which
consisted of well over 800 pages, the panel came to the following
conclusions: Horning sustained a “[c]oncussion with resulting
headache and dizziness and mood instability” and “[n]eck strain”
from the accident; it was “medically more likely than not that no
other conditions arose secondarily as a result of the conditions
listed”; the “concussion with resulting headache and dizziness
and the neck strain most likely became medically stable six
months after the industrial accident, on February 7, 2016”; and
there was “no objective evidence that [Horning] had a preexisting
condition that increased the risk of injury nor that contributed to
the industrial injury.” Notably, the panel addressed Horning’s
complaints of psychological issues in these terms:
Given the mechanism of injury and the minor
classification of his [traumatic brain injury (TBI)], it
is unlikely that the work injury caused any mood or
emotional symptoms beyond the period of medical
stability. Any current mood abnormalities, such as
have just as easily come from that portion of the record as from
the stricken portion. See supra ¶ 6. In contrast, the first and third
statements contain descriptions that are not included in the
admitted evidence and an explicit reference to the addendum.

Horning v. Labor Commission
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depression or anxiety, would not be considered to
be a result of the TBI. There is no objective evidence
to support a diagnosis of post-traumatic-stress-
disorder (PTSD) . . . .
It is medically more likely than not that
[Horning’s] emotional and mood symptoms that
persisted after the period of medical stability did not
arise secondarily to the TBI.
¶10 Horning objected to the medical panel’s report on the
following grounds: the inclusion of descriptions outlining the
video surveillance tainted the medical panel, the medical panel
made factual findings contrary to those made at the hearing by
the ALJ, the medical panel did not include a basis for its
conclusion that Horning had reached maximum medical
improvement, the panel failed to address the aggravation of
Horning’s preexisting conditions, and the medical panel did not
properly address Horning’s ongoing mood instability. Based on
these issues—in particular, the panel’s consideration of the
excluded evidence—Horning requested a new medical panel be
appointed and the matter “be reexamined from scratch.”
¶11 The ALJ declined to appoint a new medical panel but
elected to send the matter back to the same panel for clarification
as to specific questions and with the explicit instruction to
“exclude from . . . consideration” Dr. Mattingly’s and Dr.
Houston’s “assertions of what they saw on the video tape, and
simply use the remaining medical exhibit, [the ALJ’s] fact
findings, and the results of [the medical panel’s] evaluation” of
Horning. The medical panel responded to the ALJ’s questions,
and Horning filed another objection to the report, but the ALJ
rejected Horning’s objection and admitted the medical panel’s
responses into evidence.
¶12 In May 2019, the ALJ issued its findings of fact, conclusions
of law, and order denying ongoing benefits. Horning filed a

Horning v. Labor Commission
20210562-CA 7 2023 UT App 30
motion for review, raising three issues: (1) that the panel
improperly considered stricken evidence; (2) that the composition
of the panel did not meet statutory requirements “in that there
was no specialist in the treatment of TBI/concussion, headaches,
hearing damage, PTSD, anxiety or spinal injury”; and (3) that the
report contained numerous faults, including using unnamed and
rejected studies, excluding Horning’s psychological injuries as not
objectively provable, and requiring Horning to prove that no pre-
existing conditions existed.3
¶13 The Commission rejected Horning’s arguments about the
stricken evidence and the alleged substantive faults in the report,
but it remanded the matter to the ALJ to address the panel
members’ “expertise in treating the specific conditions to which
. . . Horning attributes his disability.” The two panelists provided
their qualifications in two responses. The following was
submitted for Dr. Biggs:
Dr. Biggs is board certified in Family Medicine and
currently works as a full-time occupational
medicine clinician, specializing in work-related
illness and injuries. Dr. Biggs has a Master’s degree
in Occupational Health and has extensive
experience diagnosing and treating concussion,
post-concussion syndrome and cervical injuries. Dr.
Biggs performs hearing exams and diagnoses and
manages work-related noise injuries and
symptoms, including tinnitus. He has many years of
experience diagnosing and treating anxiety and
depression as a family physician. Dr. Biggs
diagnoses acute stress response conditions related
to work trauma as well as post-traumatic stress
3. Aeroscape also filed a motion for review on the issue of offset
for overpayments, which the ALJ addressed on remand.

Horning v. Labor Commission
20210562-CA 8 2023 UT App 30
disorders, coordinating treatment with trained
psychologists.
Dr. Smith’s qualifications were described as follows:
Dr. Smith is board certified in Neurology and in
Neurocritical Care and works as a full time
neurointensivist. Dr. Smith has experience in
diagnosis and treatment of traumatic brain injury,
post-concussion syndrome, headache, and other
sequela of traumatic brain injury.
And a supplemental submission added to Dr. Smith’s
qualifications:
Dr. Smith is board certified in Adult Neurology
through the American Board of Psychiatry and
Neurology and is fellowship trained and board
certified in Neurocritical Care through the United
Council for Neurological Subspecialties. Dr. Smith
has many years of experience in outpatient and
hospital-based neurology.
¶14 Horning filed continuing objections to the substance of the
panel’s report and the panel members’ qualifications.
Incorporating its previous findings of fact, conclusions of law, and
order, the ALJ issued an amended order that addressed the panel
members’ expertise. The ALJ found that “the medical panel
members have expertise and years of experience in treating
persons with traumatic brain injuries and post-concussion
problems including headaches, as well as evaluating hearing
problems such as tinnitus, and anxiety and depression.” The ALJ
thus determined that the panel members were “qualified to
evaluate” Horning’s conditions.
¶15 Horning again filed a motion for review, reiterating his
assertions that the panel improperly reviewed excluded evidence,

Horning v. Labor Commission
20210562-CA 9 2023 UT App 30
used unnamed or rejected studies as a basis for its conclusions,
required objective evidence to establish coverable psychological
injuries, improperly required Horning to prove the lack of pre-
existing conditions, did not understand that medical causation
can arise secondarily from a work accident, and determined that
Horning had returned to baseline without addressing pre-injury
status.
¶16 In July 2021, the Commission issued an order affirming the
ALJ’s decision. The Commission relied on the medical panel’s
report in concluding that “no . . . causal connection existed”
between Horning’s “current neurological symptoms as well as his
depression and anxiety symptoms” and his work injury. Horning
now seeks judicial review of the decision.
ISSUES AND STANDARDS OF REVIEW
¶17 Horning contends that the medical panel was not qualified
to address his medical and mental health issues. “A challenge to
an administrative agency’s finding of fact is reviewed for
substantial evidence. We review the law applied to those facts for
correctness.” Gamez v. Utah Labor Comm’n, 2022 UT 20, ¶ 23, 511
P.3d 1145 (cleaned up).4
4. For some time, various judges on this court have been using the
parenthetical “(cleaned up)” to enhance the readability of our
opinions. See State v. Cady, 2018 UT App 8, ¶ 9 n.2, 414 P.3d 974,
cert. denied, 421 P.3d 439 (Utah 2018). Our opinions also employ
the parenthetical “(quotation simplified),” which is identical in
meaning to “(cleaned up).” See In re K.W., 2018 UT App 44, ¶ 15
n.3, 420 P.3d 82. Both parentheticals indicate the omission of
internal quotation marks, brackets, ellipses, emphases, internal
citations, and footnote signals in published sources, as well as the
traditional parenthetical notation referencing a prior case or cases
(continued…)

Horning v. Labor Commission
20210562-CA 10 2023 UT App 30
¶18 Horning next argues that the Commission exceeded its
discretion in considering the medical panel’s report—which he
alleges was tainted by exposure to descriptions of the surveillance
video—over his objection. “We review the [Commission’s] refusal
to exclude a medical panel report on the basis of an objection
under an abuse of discretion standard, providing relief only if a
reasonable basis for that decision is not apparent from the
record.” Foye v. Labor Comm’n, 2018 UT App 124, ¶ 16, 428 P.3d 26
(cleaned up), abrogated on other grounds by Gamez v. Utah Labor
Comm’n, 2022 UT 20.
¶19 Horning lastly complains that the Commission’s factual
findings on the issue of medical causation were not supported by
substantial evidence. “Whether the Commission properly found
that medical causation exists is a question of fact we review for
being quoted. Ellipses indicate all other omissions. We also use
these parentheticals to make unbracketed changes to
capitalization. Apart from capitalization, alterations to words in
the source are indicated by brackets.
These parentheticals are powerful editing tools because
they make legal writing less tedious, more streamlined, and more
concise. But their appeal begets a temptation to misuse them. And
we acknowledge that we have, at times, ventured too far by using
them with (1) quotations from unpublished sources not readily
available to the public (namely, briefs, lower court documents,
and transcripts) and (2) quotations of parenthetical language from
cases citing other cases. To be more transparent and precise, we
intend to limit our employment of these parentheticals to the
circumstances identified in the above paragraph, and we expect
practitioners who choose to employ these devices to abide by
these same strictures. So that consistency of use might be
achieved, the publishers of The Bluebook may wish to adopt rules
similar to those proffered by Jack Metzler. See Jack Metzler,
Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154–55
(2017).

Horning v. Labor Commission
20210562-CA 11 2023 UT App 30
substantial evidence. 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.” YESCO v. Labor Comm’n, 2021 UT App 96,
¶ 13, 497 P.3d 839 (cleaned up).
ANALYSIS
I. Qualifications of the Medical Panel
¶20 Citing Wright v. Labor Commission, 2021 UT App 43, 489
P.3d 211, cert. granted, 496 P.3d 711 (Utah 2021), Horning argues
that the two panel members were not qualified because the
Commission made no finding that the members had “extensive
experience in treating the conditions at issue.” See id. ¶ 22 (cleaned
up). He further asserts that their lack of qualification is
demonstrated by the panel’s “inability to determine the causation
of [the] psychological and hearing injuries” he sustained after the
accident.
¶21 The law on a medical panel’s qualifications is clear: “A
medical panel . . . shall consist of one or more physicians
specializing in the treatment of the disease or condition involved
in the claim.” Utah Code § 34A-2-601(1)(c). “[T]he plain meaning
of the statute is that at least one of the physicians who serves on a
medical panel must specialize in the condition or injury involved
in the claim. But it does not require this of all panel members.”
Gamez v. Utah Labor Comm’n, 2022 UT 20, ¶ 35, 511 P.3d 1145.
¶22 The ALJ, based on the submissions of the panel members
regarding their credentials, see supra ¶ 13, stated, “Clearly the
medical panel members have expertise and years of experience in
treating persons with traumatic brain injuries and post-
concussion problems including headaches, as well as evaluating
hearing problems such as tinnitus, and anxiety and depression.

Horning v. Labor Commission
20210562-CA 12 2023 UT App 30
The [ALJ] concludes the panel members are qualified to evaluate
[Horning’s] conditions.”
¶23 Horning challenges the panel’s qualifications by arguing
that “in light of their inability to determine the causation of [his]
psychological injuries, it is hard to place either panel member in
the category of being specialized in the diagnosis and treatment of
such injuries.” But Horning does not cite any authority, nor are
we aware of any, that supports his circular reasoning that because
the panel members were unable to determine the causation of
Horning’s psychological injuries, the panel members could not be
placed in the category of those who specialize in psychological
injuries.
¶24 Contrary to Horning’s assertion, the record clearly
indicates that both panel members “specializ[ed] in the treatment
of the disease or condition involved in the claim.” See Utah Code
§ 34A-2-601(1)(c). Dr. Biggs explicitly stated that he (1) “has
extensive experience diagnosing and treating concussion, post-
concussion syndrome and cervical injuries,” (2) “has many years
of experience diagnosing and treating anxiety and depression as
a family physician,” and (3) “diagnoses acute stress response
conditions related to work trauma as well as post-traumatic stress
disorders.” And Dr. Smith is a board-certified neurologist who (1)
works as a neurointensivist, (2) “has experience in diagnosis and
treatment of traumatic brain injury, post-concussion syndrome,
headache, and other sequela of traumatic brain injury,” and (3)
“has many years of experience in outpatient and hospital-based
neurology.” These are the very type of panel members
“specializing in the treatment of the disease or condition involved
in the claim” called for in the statute. See id.
¶25 Consequently, we reject Horning’s claim that the panel was
not qualified.

Horning v. Labor Commission
20210562-CA 13 2023 UT App 30
II. Admission of Excluded Evidence
¶26 Horning argues that the Commission erred in considering
the medical panel’s report because, he contends, the panel was
tainted by having seen two stricken pages in the record that
discussed the excluded evidence. Horning states,
This [excluded evidence] appears to have been
taken into consideration by the panel as reflected by
their statements such as, “Underlying motives in the
form of primary or secondary gain could be
influencing recovery,” and “There is a reported
propensity for a sizable portion of those with mild
TBI to exaggerate the duration and severity of the
symptoms, especially with secondary gain
considerations,” among other such statements
regarding the credibility of [Horning’s] reported
injuries.
(Footnote omitted.)
¶27 With our standard of review in mind, we conclude that
Horning has not shown that it was an abuse of discretion for the
Commission to consider the medical panel’s report. After all, the
ALJ had, in response to Horning’s objection, instructed the
medical panel to “exclude from . . . consideration” any assertions
of what was seen on the surveillance video and rely instead on
“the remaining medical exhibit, [the ALJ’s] fact findings, and the
results of [the medical panel’s] evaluation” of Horning when she
returned the matter to it. That the panel came to conclusions about
Horning’s motives for asserting the severity and duration of his
psychological injuries with which Horning disagrees does not
show that the panel relied on excluded evidence to reach those
conclusions. Given that there is no reason to conclude that the
panel disregarded the ALJ’s instructions—apart from Horning’s
unsupported allegation that the panel was tainted—we discern no
abuse of discretion by the Commission in considering the report.

Horning v. Labor Commission
20210562-CA 14 2023 UT App 30
¶28 Thus, we reject Horning’s claim that the Commission
abused its discretion in considering the medical panel’s report in
its deliberations.
III. The Commission’s Factual Findings
¶29 Horning argues that the Commission failed to recognize
that the medical panel’s report was “based upon nebulous,
distorted and incorrect foundations.” Horning asserts that
because the Commission relied on the allegedly erroneous
medical panel report, there was not a sufficient “quantum of
substantial, competent evidence to sustain the Commission’s
order” with regard to its “determination of medical causation.”5
5. Specifically, Horning identifies seven alleged deficiencies in the
medical panel’s report: (1) the panel’s determination that objective
evidence was necessary to conclude that Horning’s mental
symptoms were due to the accident; (2) the panel’s statement that
it was not possible to determine that the accident caused
Horning’s psychological symptoms, contradicting its conclusion
that the accident did not cause those symptoms; (3) the panel’s
assertion that it was not possible to determine that the accident
caused Horning’s hearing loss, contradicting its conclusion that
the accident did not cause his hearing loss; (4) the panel’s
conclusion that a pre-existing psychiatric disease contributed to
Horning’s mental symptoms; (5) the panel’s failure “to
understand and consider that, under Utah law, a ‘contribution’ by
the industrial accident to the current symptoms is a sufficient
basis for ‘causation’ of those symptoms”; (6) the panel’s failure to
provide a basis for its determination that Horning’s neck pain and
radiculopathy were non-industrial; and (7) the panel’s failure to
provide a basis for its determination of Horning’s maximum
medical improvement.
(continued…)

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20210562-CA 15 2023 UT App 30
¶30 “Because it is the province of the Commission to view all
the evidence submitted as a whole and then make an appropriate
determination, appellate courts will not review the Commission’s
credibility assessments or reweigh evidence unless the petitioner
is able to show that the Commission’s findings and conclusions
regarding causation are not supported by substantial evidence.”
JBS USA v. Labor Comm’n, 2020 UT App 86, ¶ 11, 467 P.3d 905
(cleaned up). “Substantial evidence is more than a mere scintilla
of evidence though something less than the weight of the
evidence, and the substantial evidence test is met when a
reasonable mind might accept as adequate the evidence
supporting the decision.” Hutchings v. Labor Comm’n, 2016 UT
App 160, ¶ 30, 378 P.3d 1273 (cleaned up), cert. denied, 390 P.3d
720 (Utah 2017).
¶31 Here, Horning has “highlighted only the evidence” that he
believes undermines the Commission’s findings and has not
“marshaled the evidence supporting the Commission’s factual
findings.” See JBS USA, 2020 UT App 86, ¶ 12. And “although
failing to marshal the evidence is no longer considered a technical
deficiency, an appellant failing to marshal all relevant evidence
presented at trial which tends to support the findings and
demonstrate why the findings are clearly erroneous will almost
certainly fail to carry their burden of persuasion on appeal.”
With regard to the medical panel’s causation
determination, Horning is critical of the panel’s use of certain
“AMA guides,” arguing that they have not been specifically
adopted for use by the Commission. Horning appears to argue
that the panel should use AMA guides only if those guides have
been approved by the Commission. But nothing in the
Commission’s rule adopting guides for a specific issue (e.g.,
establishing impairment ratings, see Utah Admin. Code R612-300-
9(B)) indicates a requirement that approval of AMA guides is
necessary for their use in proceedings not involving that specific
issue.

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Widdison v. Kirkham, 2018 UT App 205, ¶ 9, 437 P.3d 555 (cleaned
up).
¶32 In addition to the medical panel’s opinion—which is the
source of all of Horning’s sufficiency of the evidence complaints—
there is additional evidence to support the Commission’s
findings. Ultimately, it is not the findings of the medical panel that
are under review but the Commission’s findings, and those
findings go beyond the conclusions of the medical panel to
include consideration of the entire record, a fact that Horning
ignores. Indeed, Horning does nothing to attack the
Commission’s findings apart from asserting that they were
entirely based on the medical panel’s report. But along with the
medical panel’s conclusions—which the Commission found “to
be persuasive” because they were “supported by the record” and
were “the product of impartial, collegial, and expert review of all
of . . . Horning’s relevant medical history”—the Commission
relied on the entirety of the medical record and the opinions of the
other doctors in concluding that the conditions at issue were not
medically causally connected to the industrial accident.
¶33 Because the Commission’s findings were based on not only
the report of the medical panel—which itself constituted
substantial evidence before the Commission—but also the
corroborating reports of other doctors and the entirety of the
medical record, we conclude that the Commission’s findings were
supported by substantial evidence and should not be disturbed.
CONCLUSION
¶34 Horning has not shown that the medical panel lacked the
expertise to evaluate his conditions, that the Commission abused
its discretion in relying on the medical panel’s report, or that the
Commission’s factual findings were not supported by substantial
evidence. Accordingly, we decline to disturb the Commission’s
decision.