Benge v. Labor Commission

2019 UT App 164

THE UTAH COURT OF APPEALS

GERALD BENGE,
Petitioner,
v.
CODY EKKER CONSTRUCTION, AUTO OWNERS INSURANCE
COMPANY, AND LABOR COMMISSION,
Respondents.

Opinion
No. 20180366-CA
Filed October 10, 2019

Original Proceeding in this Court

Richard R. Burke, Attorney for Petitioner
Mark R. Sumsion and Lori L. Hansen, Attorneys for
Respondents Cody Ekker Construction and Auto
Owners Insurance Company

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

MORTENSEN, Judge:

¶1 Gerald Benge injured his knee at work and ultimately
underwent three surgeries. Due to a dispute regarding whether
the latter two surgeries were medically caused by the work
injury and whether any permanent impairment was attributable
to the workplace incident, Benge filed a workers’ compensation
claim. In making his claim, Benge tried to sweeten his arguments
by relying on Gunnison Sugar Co. v. Industrial Commission of Utah,
275 P. 777 (Utah 1929). However, the Utah Labor Commission
denied Benge’s claim. We decline to disturb the Commission’s
order.
Benge v. Labor Commission

BACKGROUND 1

The Work Injury and Three Surgeries

¶2 In 2013, while working for Cody Ekker Construction
(Employer), Benge was operating an excavator on a trailer ramp.
When the ramp suddenly tilted, he quickly got out of the
excavator onto the trailer and then jumped down from the trailer
to the ground. When he landed, his right knee twisted, popped,
and caused him immediate pain. Benge went to the emergency
room and was diagnosed with a torn meniscus and a fracture of
his tibial plateau. Soon after, a doctor performed surgery (First
Surgery) in which he made small incisions, cleaned out dead and
damaged tissue, removed part of the meniscus, and shaved off
and reshaped part of the patella on Benge’s right knee. 2 During
the First Surgery, the operating doctor noted “some balled up
tissue with some obvious partial tearing of the ACL . . . [which]
was calcified representing probable older type tissue from an
older pathologic type tear.” Benge was not happy with the
results of his treatment, however, so he requested a change of
doctors and began seeing Dr. Holmstrom.

¶3 Over the next two years, Benge underwent two more
surgeries on his right knee. In January 2014, as pain in Benge’s
knee persisted and after discussing the details of his knee with

1. A party seeking review of an agency order “bears the burden
of demonstrating that the agency’s factual determinations are
not supported by substantial evidence and 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).

2. In medical terms, the doctor performed an arthroscopic
surgery with debridement, a partial meniscectomy, and a
chondroplasty of the patella.

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Dr. Holmstrom, Benge received a right knee ACL reconstruction
(Second Surgery). Then, in March 2015, Dr. Holmstrom
performed a total knee replacement (Third Surgery). Dr.
Holmstrom opined that all Benge’s knee problems were causally
connected to the 2013 work injury. However, Employer’s
medical consultant, Dr. Green, evaluated Benge’s injuries and
partially disagreed with Dr. Holmstrom’s conclusion. Dr. Green
agreed that the injuries addressed in the First Surgery were
causally connected to the 2013 work injury, but he concluded
that the other knee problems addressed in the subsequent
surgeries were preexisting and unrelated to the 2013 work
injury.

The Administrative Adjudication

¶4 Benge then filed a claim for permanent total disability
under the Utah Workers’ Compensation Act, 3 and an
administrative law judge (ALJ) held an evidentiary hearing.
During the hearing, Employer admitted that Benge sustained a
meniscus tear and tibial plateau fracture as a result of the 2013
incident—or in other words, Employer admitted that the First
Surgery was compensable by workers’ compensation. But
Employer argued that Benge’s ACL tear and conditions that led
to the Second Surgery and Third Surgery were not related to the
2013 work injury, and thus not compensable.

¶5 Because of the doctors’ contradictory opinions, the ALJ
referred the medical issues to a medical panel (Panel). 4 The Panel

3. See generally Utah Code Ann. §§ 34A-2-101 to -1005
(LexisNexis 2018).

4. Rule R602-2-2(A) of the Utah Administrative Code requires an
ALJ to utilize a medical panel where significant medical issues
and one of the enumerated situations of conflicting medical
opinions are involved. Clean Harbors Envtl. Services v. Labor
(continued…)

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concluded that Benge’s 2013 work injury did not medically cause
the injuries addressed in the Second Surgery and Third Surgery.
The Panel specifically reported that “neither the right tibial
plateau fracture nor the lateral meniscal tear impacted or
accelerated Mr. Benge’s other right knee condition in any degree.”
(Emphasis added.) 5 The Panel also concluded that Benge’s 2013
work injury reached medical stability by December 15, 2013, and
did not result in permanent impairment.

¶6 After reviewing the Panel’s reports, the ALJ adopted the
Panel’s medical conclusions. Benge argued, however, based on
Gunnison Sugar Co. v. Industrial Commission of Utah, 275 P. 777
(Utah 1929), that his knee problems after the First Surgery were
connected to the work-caused injuries, as a matter of law. The

(…continued)
Comm’n, 2019 UT App 52, ¶ 18, 440 P.3d 916. Here, Dr.
Holmstrom’s and Dr. Green’s medical opinions were in direct
conflict related to the causation of Benge’s knee injuries
addressed in his two subsequent surgeries.

5. The Panel visited the issue of medical causation three times.
The first time, the Panel found that Benge “sustained an acute
right knee injury, consisting of a lateral tibial plateau fracture
and contusion . . . [and] a lateral meniscal tear.” In a
supplemental report, the Panel clarified its findings by stating
that “[i]t is medically more probable than not that neither the
right tibial plateau fracture nor the lateral meniscal tear
significantly impacted or accelerated Mr. Benge’s other right
knee conditions.” Finally, due to an objection regarding the use
of the word “significantly,” the Panel issued a final
supplemental report in which it found that “neither the right
tibial plateau fracture nor the lateral meniscal tear impacted or
accelerated Mr. Benge’s other right knee condition in any
degree.”

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ALJ rejected Benge’s argument, and explained that Benge’s
injuries related to his First Surgery “did not impact or accelerate
[his] other knee conditions.” Additionally, the ALJ explained
that Benge’s “preexisting knee conditions and treatment at all
times based on the preponderance of the medical evidence and
medical opinions have existed independently from” the 2013
work injury. The ALJ further found that “the evidence show[ed]
that [Benge’s] primary injury was not aggravated by medical or
surgical treatment.” Benge also argued that Employer was
equitably estopped from denying compensability for the
subsequent surgeries, but the ALJ rejected this argument as well,
citing Olsen v. Industrial Commission of Utah, 776 P.2d 937 (Utah
Ct. App. 1989). 6 Consequently, the ALJ denied Benge’s claim
regarding the Second Surgery, Third Surgery, and permanent
impairment.

¶7 Benge then filed a motion for agency review, and the
Commission issued an order agreeing with the ALJ’s decision. In
its order, the Commission noted the disagreement between Dr.
Holmstrom’s and Dr. Green’s opinions as to the medical cause of
Benge’s injuries addressed in the Second Surgery and Third
Surgery. The Commission further acknowledged that the ALJ
adopted the Panel’s conclusion that Benge’s 2013 work injury
warranted the First Surgery but not the subsequent surgeries.
Moreover, the Commission specifically disagreed with Benge’s
argument that Gunnison Sugar applied to his situation. And the
Commission stated that “a preponderance of the evidence shows
the [2013] accident medically caused an injury that was separate
from other pathology in Mr. Benge’s right knee and unrelated to
the [First Surgery] he received.” Finally, the Commission
explained that additional evidence supported the Panel’s
finding, including Dr. Green’s opinion, MRI results, and the
operative report following the First Surgery.

6. See infra ¶ 21.

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¶8 Benge petitions for judicial review.

ISSUES AND STANDARDS OF REVIEW

¶9 There are two issues before this court. 7 First, Benge
contends that the Commission erred in denying his claim
because his subsequent surgeries were caused by the 2013 work
injury, and he contends that under Gunnison Sugar Co. v.
Industrial Commission of Utah, 275 P. 777 (Utah 1929) all his
injuries are compensable, as a matter of law. “Because medical
causation is a question of fact,” e.g., Valdez v. Labor Comm’n, 2017
UT App 64, ¶ 10, 397 P.3d 753, we review the Commission’s
finding that Benge’s injuries addressed in the two subsequent
surgeries were not medically caused by the 2013 work injury for
substantial evidence, see Provo City v. Utah Labor Comm’n, 2015
UT 32, ¶ 8, 345 P.3d 1242. “Substantial evidence is that quantum
and quality of relevant evidence that is adequate to convince a
reasonable mind to support a conclusion.” Utah Chapter of the
Sierra Club v. Board of Oil, Gas, and Mining, 2012 UT 73, ¶ 11, 289
P.3d 558 (cleaned up). “In conducting a substantial evidence
review, we do not reweigh the evidence and independently
choose which inferences we find to be the most reasonable.”
Provo City, 2015 UT 32, ¶ 8 (cleaned up). “Instead, we defer to
[the Commission’s] findings because when reasonably
conflicting views arise, it is the [Commission’s] province to draw
inferences and resolve these conflicts.” Id. (cleaned up). But “we
review the law [the Commission] applied to these facts for
correctness.” Id. ¶ 17.

7. The Utah Administrative Procedures Act provides us the
authority to review administrative decisions. Utah Code Ann.
§ 63G-4-403(2)(a) (LexisNexis Supp. 2019); see also Utah Chapter of
the Sierra Club v. Air Quality Board, 2009 UT 76, ¶ 13, 226 P.3d
719.

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¶10 Next, Benge contends that Employer is equitably
estopped from denying coverage for the Second Surgery and
Third Surgery because he detrimentally relied on Employer’s
approval and payment for the surgeries. “The issue of whether
equitable estoppel has been proven is a classic mixed question of
fact and law.” Iota, LLC v. Davco Mgmt. Co., 2012 UT App 218,
¶ 12, 284 P.3d 681 (cleaned up). “Because the equitable estoppel
inquiry is highly fact-sensitive, we properly grant the
[Commission’s] decision a fair degree of deference when we
review the mixed question of whether the requirements of the
law of estoppel have been satisfied in any given factual
situation.” Atlas Van Lines, Inc. v. Dinosaur Museum, 2016 UT App
30, ¶ 10, 368 P.3d 121 (cleaned up).

ANALYSIS

¶11 Benge asserts that the Commission erred in its
conclusions regarding medical causation and equitable estoppel.
We disagree with him on both points.

I. Medical Causation

¶12 Benge contends that the Commission erred in denying his
claim for workers’ compensation benefits in connection with the
two subsequent surgeries, asserting that both the Commission’s
finding of fact and application of the law were erroneous. Both
of these arguments are unpersuasive for the following reasons.

A. Substantial Evidence

¶13 There is substantial evidence that Benge’s injuries
addressed by the Second Surgery and Third Surgery were
neither medically caused by the 2013 work injury nor affected at
all by the First Surgery. “[A] medical panel’s report alone can be
enough to conclude that a Commission’s determination was
supported by substantial evidence.” Valdez v. Labor Comm’n, 2017

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UT App 64, ¶ 22, 397 P.3d 753; see also Hutchings v. Labor Comm’n,
2016 UT App 160, ¶ 32, 378 P.3d 1273 (“[T]he medical panel’s
report alone provide[d] substantial evidence to support the
Commission’s medical causation determination.”). Such is the
case here.

¶14 The Panel addressed all three of Benge’s surgeries and the
conditions underlying them, and it concluded that the 2013 work
injury did not cause or affect the other injuries addressed in the
subsequent two surgeries “in any degree.” Moreover, the ALJ
explained that the Panel’s findings indicated that the First
Surgery did not necessitate the subsequent two surgeries
because the conditions therein were preexisting and
independent. This alone is sufficient for us to conclude that the
Commission’s decision was supported by substantial evidence.
See, e.g., Valdez, 2017 UT App 64, ¶ 22. However, the
Commission’s decision exceeded this standard because the
Commission identified further evidence to support the Panel’s
determinations, including Dr. Green’s opinion that was the same
as the Panel’s, MRI results from Benge’s knee, and the operative
report following the First Surgery in which the operating doctor
noted calcification on Benge’s partial ACL tear representing “an
older pathologic type tear.”

¶15 Benge argues that we should order the Commission to
find that “Dr. Holmstrom connected his care to [Benge’s] work
injuries” and to “reverse the Commission’s wrongful denial.”
However, Dr. Holmstrom’s opinion is not dispositive. The key is
not whether Dr. Holmstrom opined that the injuries were
medically caused by the 2013 work injury or the First Surgery.
The key is what the Panel, and ultimately the Commission,
found to be the cause. And although Benge may have
“competing medical theories, the Commission’s conclusions
were certainly supported by substantial evidence,” which is
dispositive as to our review of a finding of fact. See Wallace v.
Labor Comm’n, 2019 UT App 121, ¶ 16 (cleaned up); see also Olsen
v. Industrial Comm’n of Utah, 776 P.2d 937, 940 (Utah Ct. App.

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1989) (“We do not deem the Commission’s findings arbitrary
and capricious simply because the Commission adopted the
findings of the panel rather than those of the independent
physicians.” (cleaned up)). Accordingly, given the Panel’s report
and the additional evidence, we have no difficulty concluding
that the Commission’s finding of causation was supported by
substantial evidence.

B. Application of Law

¶16 The Commission’s application of the law was correct. In
Allen v. Industrial Commission, 729 P.2d 15 (Utah 1986), our
supreme court set out a two-part test to determine whether work
injuries are compensable: The accident must be both the legal
cause and medical cause of the injury. Id. at 25–28. “Allen makes
clear that there must be a nexus between the accident and the
injury for which treatment is sought. Only medical expenses for
injuries resulting from an industrial accident are compensable.
Requiring a nexus between the accident and injury prevents an
employer from becoming a general insurer of his employees and
discourages fraudulent claims.” Petersen v. Labor Comm’n, 2016
UT App 222, ¶¶ 18, 20, 385 P.3d 759 (holding that because the
work accident “did not medically cause the condition that
required the [subsequent] surgeries, the surgeries were not”
compensable (cleaned up)). Here, the Commission properly
applied the Allen test to Benge’s injuries and surgeries in
denying his claim.

¶17 Benge nevertheless argues that Gunnison Sugar Co v.
Industrial Commission of Utah, 275 P. 777 (Utah 1929), applies to
this case, but this argument misses the mark. In Gunnison Sugar,
an employee suffered a back injury at work and was treated by a
doctor, who later moved to another part of the state. Id. at 777.
The employee then visited another doctor for his back, but the
new doctor incorrectly diagnosed the employee and, in an effort
to treat the work-related back injury, advised him to have all his
teeth extracted, which the employee did through his dentist. Id.

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The employee brought a workers’ compensation claim and was
awarded costs for his troubles. Id. at 779. In approving the
commission’s award, our supreme court explained that “the
aggravated loss or condition of the employee so occasioned by
the negligence or unskillfulness of such physician cannot be said
to be due to an independent and intervening cause but must be
held attributable to the accident resulting in injury which as a
primary cause set in motion a train of events from which the
aggravated condition resulted.” Id. (emphasis added). Thus, in
Gunnison Sugar, the work injury was the direct cause of the
inappropriate and unfortunate removal of the employee’s teeth
because the teeth were removed in a misguided effort to treat the
original work-related injury. See id.

¶18 Here, Benge’s situation is wholly different from the
employee’s in Gunnison Sugar because the Second Surgery and
Third Surgery were performed to treat conditions that were
found to be unrelated Benge’s work injury. As discussed above,
the Panel found that Benge’s 2013 work injury did not affect his
other conditions “in any degree.” Moreover, the ALJ explained
that the First Surgery did not necessitate the subsequent
surgeries because the injuries therein were preexisting and
independent. Finally, the Commission concluded that the
Second Surgery, Third Surgery, and their underlying injuries
were independent and unrelated to the 2013 work injury and the
First Surgery. Thus, the Commission’s conclusion was the exact
opposite from the one reached in Gunnison Sugar.

¶19 Simply put, Benge’s reliance on Gunnison Sugar is
misplaced because it does not apply to the facts of this case. 8 Cf.

8. Benge’s argument that Perchelli v. Utah State Industrial
Commission, 475 P.2d 835 (Utah 1970), applies to this case is
unpersuasive for the same reason: Perchelli and this case are
factually distinguishable. In Perchelli, the employee injured his
lower back, sneezed two years later and thereby reinjured his
(continued…)

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Benge v. Labor Commission

Petersen, 2016 UT App 222, ¶¶ 19–20 (holding that because the
work accident “did not medically cause the condition that
required the [subsequent] surgeries, the surgeries were not”
compensable (cleaned up)). Therefore, the Commission correctly
applied the law, and we decline to disturb its decision.

II. Equitable Estoppel

¶20 Employer was not equitably estopped from denying
compensability for Benge’s two subsequent surgeries. To prevail
on a claim of equitable estoppel, a party must establish three
elements:

(1) a statement, admission, act, or failure to act by
one party inconsistent with a claim later asserted;
(2) reasonable action or inaction by the other party
taken or not taken on the basis of the first party’s
statement, admission, act or failure to act; and
(3) injury to the second party that would result
from allowing the first party to contradict or
repudiate such statement, admission, act, or failure
to act.

Howick v. Salt Lake City Corp., 2018 UT 20, ¶ 14, 424 P.3d 841.
(cleaned up).

¶21 However, “the mere fact that an employer pays benefits
initially without contesting liability does not mean it is
thereafter, as a matter of law, barred from contesting liability.”
Olsen v. Industrial Comm’n of Utah, 776 P.2d 937, 940 (Utah Ct.
App. 1989). Indeed, our supreme court has long stated that “in

(…continued)
back, and our supreme court held that the denial of his claim
was erroneous. Id. at 836–38. Conversely, the findings here were
that the injuries were preexisting, independent, and unrelated.

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Benge v. Labor Commission

the absence of prejudice to the employee or of facts giving rise to
estoppel, an insurance carrier may, notwithstanding voluntary
payment of compensation, . . . urge the defense that the
employee did not meet with an accident . . . or that there was no
causal connection between the injury and disability.” Harding v.
Industrial Comm’n of Utah, 28 P.2d 182, 184 (Utah 1934). A rule to
the contrary would result in more employers’ contesting claims
at the outset to avoid being estopped from raising arguments
later, which would be problematic for employees, employers,
and insurance carriers. Olsen, 776 P.2d at 941 (discussing the
same policy concern).

¶22 Benge argues that Employer is “estopped from denying
liability for [his] medical care and secondary injuries because
[he] relied on [Employer’s] irreversible medical care to his
prejudice.” The thrust of Benge’s argument is that his surgeries
are irreversible. His argument is unpersuasive because it does
not establish the second and third equitable estoppel elements—
reasonable reliance and detrimental injury. See Howick, 2018 UT
20, ¶ 14.

¶23 Benge has failed to prove that, in making the decision to
undergo the Second Surgery and Third Surgery, he reasonably
relied—or even relied at all—on Employer’s payment for those
surgeries. Benge had the surgeries after experiencing pain and
discussing the details with Dr. Holmstrom. Thus, regardless of
Employer’s approval and payment, Benge and Dr. Holmstrom
concluded that he needed the surgeries, and there is no evidence
that Benge changed his position based on Employer’s approval
or payment for them. For the same reason, Benge has failed to
prove that Employer’s payment and approval of the surgeries
were detrimental to him. Again, he needed the surgeries. Simply
because the surgeries are irreversible does not make them
detrimental. The fact that Employer initially paid for the
surgeries was not detrimental to Benge; rather, it was in line
with the public policy discussed above. See Olsen, 776 P.2d at
941. Therefore, despite Benge’s bare assertions that Employer

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should be estopped from denying compensability, he has not
persuaded us that such is the case here.

CONCLUSION

¶24 We decline to disturb the Commission’s order because it
was adequately supported by substantial evidence, correctly
applied the law, and properly denied Benge’s equitable estoppel
claim.

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