A-1 Septic Tank v. Messersmith

2019 UT App 62
THE UTAH COURT OF APPEALS
A-1 S EPTIC TANK S ERVICES LLC AND A UTO O WNERS
I NSURANCE C OMPANY ,
Petitioners,
v.
K RIS M ESSERSMITH ,
Respondent.
Opinion
No. 20170690-CA
Filed April 25, 2019
Original Proceeding in this Court
Mark R. Sumsion and Cody G. Kesler, Attorneys
for Petitioners
Austin B. Egan, Attorney for Respondent
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	An 	administrative 	law 	judge 	(ALJ) 	dismissed 	with
prejudice a request for a hearing on Kris Messersmith’s claim for
work-related injury and disability benefits following a work
accident. Messersmith appealed to the Utah Labor Commission
(Commission), and the Commission modified part of the ALJ’s
decision: the Commission changed the dismissal to one without
prejudice, thereby permitting Messersmith to refile his claim.
A-1 Septic Tank Services LLC and Auto Owners Insurance
Company (collectively, A-1) seek judicial review. Because the
Commission effectively eliminated the ALJ’s decision on the
merits, we set aside the Commission’s decision and reinstate the
ALJ’s disposition of the matter.

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BACKGROUND
¶2 	A-1 hired Messersmith in 2014 to work as a truck driver,
requiring that he clean septic tanks and storm drains as part of
his 	position. 	In 	a 	non-work-related 	accident 	sustained 	on
December 25, 2015, Messersmith slipped and landed on his
buttocks and was diagnosed as suffering from an “acute right
buttock contusion.” He obtained a magnetic resonance imaging
(MRI) scan that showed he suffered from “early degeneration”
and a disc protrusion in the lower back between the last lumbar
vertebra and the first sacral segment of the vertebral column (L5-
S1).
¶3 	Shortly thereafter, Messersmith was diagnosed with a
“subacute lumbar contusion,” and a physician assistant noted
that 	two 	of 	Messersmith’s 	lower 	vertebrae 	needed 	fusion.
During a different exam, Messersmith reported to a family nurse
practitioner (FNP) that he was in “the worst pain he has ever
experienced.” Despite the pain, Messersmith took no time off
work and continued performing his normal work duties.
¶4 	On May 25, 2016, while working and cleaning storm
drains, Messersmith pulled on a metal grate weighing “a few
hundred pounds,” and he felt a “pop” in his low back. He
obtained a second MRI on May 31, 2016, which showed a
“relatively large” central disc herniation at L5-S1. During an
exam, the physician (Doctor 1) noted that Messersmith “was
getting by with the pain until [May 25, 2016,] when he reinjured
it pulling a storm drain.” Doctor 1 performed surgery on August
5, 2016, including discectomy, posterior lumbar fusion, and
transforaminal 	lumbar 	interbody 	fusion. 	Following 	surgery,
Messersmith 	had 	several 	post-operative 	outpatient 	medical
visits.
¶5 	In 2016, Messersmith submitted an application for hearing
with the Commission and requested medical benefits, temporary
total 	disability 	benefits, 	travel 	reimbursement, 	and 	unpaid
interest for the May 25 work-related injury. The Commission

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processed his application and ordered A-1 to respond to the
application for hearing and request for benefits. In its answer to
the application, A-1 denied liability for Messersmith’s claim and
asserted 	that 	there 	was 	no 	medical 	causation 	between
Messersmith’s workplace accident and his claimed injuries.1
¶6 	At 	A-1’s 	request, 	Messersmith 	underwent 	a 	separate
medical exam (A-1 Exam) in which another physician (Doctor 2)
concluded that Messersmith’s injuries and his need for surgery
were “causally related to the December 25, 2015 injury and not
affected” by the May 25 work-related accident. Doctor 2 further
concluded that the May 25 accident likely did not cause a
permanent 	or 	temporary 	aggravation 	of 	Messersmith’s
preexisting back condition. Relying on the A-1 Exam report, A-1
continued to deny liability.
¶7 	The ALJ held a hearing and thereafter determined that
there was no “specific record in which a provider opined that
[Messersmith’s] back issue was medically causally related to the
May 25, 2016 industrial accident.” Because no medical opinion
was admitted that conflicted with Doctor 2’s assessment, the ALJ
concluded that there was no reason to refer the matter to an
impartial medical panel and dismissed Messersmith’s claim with
prejudice.
1. 	The 	parties do 	not 	dispute 	legal 	causation, 	that 	is, 	that
Messersmith’s 	May 	25 	accident 	was 	the 	legal 	cause 	of 	his
injuries. See Allen v. Industrial Comm’n, 729 P.2d 15, 25 (“To meet
the legal causation requirement, a claimant with a preexisting
condition 	must 	show 	that 	the 	employment 	contributed
something substantial to increase the risk he already faced in
everyday life because of his condition.”). But they vigorously
dispute whether that accident medically caused his injuries and
disability due to the presence of a preexisting condition. See id. at
27 (observing that to meet the medical causation standard, a
claimant must “prove the disability is medically the result of an
exertion or injury that occurred during a work-related activity”).

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¶8 	Messersmith petitioned the Commission to review the
ALJ’s 	decision, 	asserting 	that 	he 	had 	provided 	sufficient
evidence of medical causation and that the Commission should
remand the matter to the ALJ with instructions to appoint a
medical 	panel. 	The 	Commission 	agreed 	with 	the 	ALJ 	that
Messersmith had failed to provide evidence of medical causation
linking the May 25 accident to his injuries that required surgery.
The Commission observed that the medical reports submitted by
Messersmith, including those from Doctor 1, “stopped short of
opining 	that 	Mr. 	Messersmith’s 	low-back 	condition 	was
medically causally connected to the [May 25] accident.”
¶9 	Due 	to 	an 	alleged 	lack 	of 	supporting 	medical
documentation, the Commission determined that Messersmith
had failed to meet his initial burden of presenting sufficient
supporting documentation of a claim. The Commission observed
that 	“[g]enerally, 	an 	application 	for 	hearing 	that 	is 	not
sufficiently supported by accompanying medical documentation
is dismissed prior to an evidentiary hearing.” The Commission
modified the ALJ’s decision; it altered the disposition from a
dismissal 	with 	prejudice, 	to 	a 	dismissal 	without 	prejudice
because, 	in 	the 	Commission’s 	view, 	the 	ALJ’s 	evidentiary
hearing did not “truly [adjudicate] the merits of the claim as
there 	was 	no 	medical 	opinion 	that 	actually 	supported 	Mr.
Messersmith’s position.”
ISSUE AND STANDARD OF REVIEW
¶10 	A-1 seeks judicial review of the Commission’s decision.
A-1 asks us to set aside the disposition of Messersmith’s claim
without 	prejudice 	and 	requests that 	we reinstate 	the 	ALJ’s
decision to dismiss with prejudice. “Whether the Commission
applied the correct legal standard in making its determination
is . . . a question of law, which we review for correctness.” A & B
Mech. Contractors v. Labor Comm’n, 2013 UT App 230, ¶ 15, 311
P.3d 528.

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ANALYSIS
¶11 	In Utah, employees who sustain injuries in the course of
their employment may be entitled to workers’ compensation
benefits. Utah Code Ann. § 34A-2-401(1) (LexisNexis 2015). For
an employee to receive compensation for an industrial accident,
the employee must demonstrate that the injury (1) occurred by
accident, 	and 	(2) 	arose 	“out 	of 	and 	in 	the 	course 	of 	the
employee’s employment.” Id.; see also Hutchings v. Labor Comm’n,
2016 UT App 160, ¶ 16, 378 P.3d 1273. The parties here only
dispute 	whether 	Messersmith’s 	injury 	arose 	out 	of 	his
employment. 	To 	show 	that 	an 	injury 	arose 	out 	of 	his
employment, “[t]he claimant must show that the work exertion
was both the legal cause and the medical cause of the injury or
disability.” Hutchings, 2016 UT App 160, ¶ 16. Because the
parties do not dispute legal causation, we focus our analysis on
medical causation.
¶12 	“The purpose of the medical causation requirement is to
ensure 	that 	there 	is 	a 	medically 	demonstrable 	causal 	link
between the legally sufficient work-related exertions and the
unexpected injuries that resulted from those strains.” Id. ¶ 18
(quotation simplified). “A claimant attempting to show that the
work-related exertion aggravated a preexisting condition must
prove the subsequent disability is medically the result of an
exertion or injury that occurred during a work-related activity,
and 	not 	solely 	the 	result 	of 	a 	pre-existing 	condition.” 	Id.
(quotation simplified).
¶13 	Here, the ALJ determined that Doctor 2 offered the only
medical 	causation assessment of 	Messersmith’s work-related
exertion and injury. Doctor 2 opined that Messersmith’s injury,
which required back surgery, was medically causally related to
Messersmith’s December 25 fall and not affected by his May 25
work-related 	accident. 	Without 	an 	assessment 	contradicting
Doctor 	2, 	the 	ALJ 	concluded 	that 	Messersmith 	had 	not
established 	medical 	causation 	and 	dismissed 	Messersmith’s
claim with prejudice. On review, the Commission affirmed the

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ALJ’s findings and conclusions. But it dismissed Messersmith’s
claim without prejudice to allow him to refile.
¶14 	A-1 	challenges 	the 	Commission’s 	decision 	to 	dismiss
Messersmith’s claims without prejudice as “endeavoring to give
Messersmith a ‘do-over’ at [A-1]’s expense and to its substantial
prejudice.” A-1 specifically argues that Messersmith’s claim for
benefits was adjudicated on the merits at the evidentiary hearing
held by the ALJ and that the procedural rule employed by the
Commission to allow Messersmith to refile his claim does not
excuse him from meeting his burden of proof.
¶15 	In response, Messersmith contends that the ALJ and the
Commission lacked jurisdiction to hear and decide his claims
because each determined that his application did not include
“supporting 	medical 	documentation.” 	While 	Messersmith
“firmly 	believes 	the 	medical 	documentation 	he 	submitted
establishes that his claimed injury (herniation at L5-S1) was
caused by (or at least aggravated by) the [May 25 accident],” he
agrees with the Commission’s assessment that it should have
rejected Messersmith’s application in its initial review.
¶16 	We 	first 	address 	whether 	Messersmith’s 	claim 	was
adjudicated on the merits by the ALJ. Then we consider the
Commission’s 	application 	of 	a 	procedural 	rule 	to 	dismiss
Messersmith’s claim without prejudice to his refiling of that
claim.
I. The ALJ’s Decision
¶17 	Messersmith requested a hearing before the Commission
to consider his claim for work-related injury and disability
compensation 	approximately 	two 	months 	after 	his 	May 	25
work-related accident. He asserted that the May 25 accident
caused his back injuries and necessitated surgery. He attached
medical records to his application 	in support of his claim,
including reports from FNP and Doctor 1. Following its initial
review of Messersmith’s application, the Commission ordered

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A-1 to answer. A-1 did so, and it denied liability for the alleged
work-related injury.
¶18 	Messersmith’s claim proceeded through discovery, and
the ALJ set an evidentiary hearing. The parties stipulated to a
continuance to allow A-1 to depose Messersmith and to obtain
the A-1 Exam, and allow Messersmith to obtain a medical exam
to rebut the A-1 Exam report. Although Messersmith asserts that
he asked Doctor 1 to read and respond to Doctor 2’s report,
Doctor 1 never submitted a rebuttal opinion.
¶19 	The ALJ held an evidentiary hearing and considered
Messersmith’s supporting medical documentation, including the
reports 	of 	Doctor 	1 	and 	FNP. 	The 	ALJ 	determined 	that
Messersmith 	provided 	no 	documents 	in 	which 	“a 	provider
opined that [Messersmith]’s back issue was medically causally
related to the [May 25 accident].” The ALJ noted Doctor 1’s
observation that Messersmith “was getting by with the pain
until [May 25, 2016,] when he reinjured [his back] pulling a
storm drain,” but the ALJ determined that this was merely a
medical history note and not a causal assessment or diagnosis.
Left 	only 	with 	Doctor 	2’s uncontroverted 	opinion, 	the 	ALJ
concluded that Messersmith had failed to carry his burden of
proving medical causation.
¶20 	The ALJ’s decision resolved Messersmith’s application on
the merits. “‘On the merits’ is a term of art that means that a
judgment is rendered only after a court has evaluated the
relevant evidence and the parties’ substantive arguments.” Miller
v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 42 n.6, 44 P.3d 663 (citing
Black’s 	Law 	Dictionary 	1117 	(7th 	ed. 	1999)). 	Under 	the
circumstances here, the ALJ considered the evidence submitted
by 	the 	parties 	and 	the 	arguments 	offered 	for 	and 	against
Messersmith’s application and concluded that Messersmith’s
supporting documentation failed to establish medical causation
and, consequently, did not support an award of injury and
disability compensation.

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II. The Commission’s Decision
¶21 	On review, the Commission agreed with the ALJ that
Messersmith failed to present evidence of medical causation. The
Commission 	observed 	that 	Messersmith 	provided 	treatment
reports 	from 	FNP 	and 	Doctor 	1, 	and 	noted 	those 	reports
“stopped 	short” 	of 	assessing 	medical 	causation. 	The
Commission nevertheless modified the ALJ’s decision, ordering
that Messersmith’s application be dismissed without prejudice to
refiling. It did so because, in its view, the hearing before the ALJ
did not “truly” adjudicate the merits of Messersmith’s claim and
“this matter should have been dismissed without prejudice prior
to 	a 	hearing.” 	This 	was 	error. 	Because 	we 	have 	already
concluded that the ALJ’s decision resolved Messersmith’s claim
on 	its 	merits, 	we 	focus 	our 	review 	on 	the 	Commission’s
procedural basis for modifying the ALJ’s decision.
¶22 	The 	Utah 	Administrative 	Code 	requires 	that 	hearing
applications for a claim for disability compensation “include
supporting medical documentation of the claim where there is a
dispute over medical issues.” Utah Admin. Code R602-2-1(B)(3).
“Supporting 	medical 	documentation” 	is 	defined 	as
“Adjudication Form 113 Summary of Medical Record or other
medical report or treatment note completed by a physician that
indicates the presence or absence of a medical causal connection
between benefits sought and the alleged industrial injury or
occupational disease.” Id. R602-2-1(A)(4).
¶23 	Applications 	submitted 	without 	supporting 	medical
documentation “may not be mailed to the employer or insurance
carrier for answer.” Id. R602-2-1(B)(3); see also id. R602-2-1(B)(4)
(“When an Application for Hearing with appropriate supporting
documentation is filed with the [Division of Adjudication within
the Labor Commission], the Division shall forthwith mail to the
respondents a copy of the Application for Hearing, supporting
documents and Notice of Formal Adjudication and Order for
Answer.”). 	But, 	if 	a 	respondent 	is 	ordered 	to 	answer 	an
application, it may also “file a motion to dismiss the Application

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for 	Hearing 	where 	there 	is 	no 	supporting 	medical
documentation filed to demonstrate medical causation when
such is at issue between the parties.” Id. R602-2-1(B)(3).
¶24 	Messersmith 	attached 	medical 	documentation 	to 	his
application, believing those documents supported his claim. He
provided treatment notes from both FNP and Doctor 1 that he
alleged 	indicated 	“the 	presence 	. 	. 	. 	of 	a 	medical 	causal
connection.” 	Id. 	R602-2-1(A)(4). 	In 	June 	2016, 	FNP 	noted
Messersmith’s 	lower 	back 	issues 	and 	then 	explained 	that
Messersmith “subsequently continued to work and while lifting
off a huge grate while working on some storm drains, hurt his
back [and] ended up in the emergency room.” Doctor 1 also
noted Messersmith’s December 25 accident and back injury,
explaining that Messersmith “was getting by with the pain until
[May 25, 2016,] when he reinjured it pulling a storm drain.”
Thus, each medical record submitted by Messersmith suggested
that a medical causal connection existed between Messersmith’s
work-related injury and claimed disability. The ALJ and the
Commission each noted FNP and Doctor 1’s treatment notes, but
disagreed with Messersmith that these notes were sufficient to
prove Messersmith’s disability was medically the result of his
May 25 work-related accident. In other words, Messersmith
attached 	the 	supporting 	medical 	documents 	necessary 	to
proceed with his application for hearing, but in the end those
documents did not prove medical causation.
¶25 	Critically, the Utah Administrative Code does not require
an 	applicant 	to 	first 	prove 	medical 	causation 	in 	medical
documentation submitted with a claim before the request may
proceed to an order for the respondents to answer. Rather, it
requires that an applicant attach to an application for hearing
any 	medical 	records, 	medical 	reports, 	or 	treatment 	notes,
completed by a physician, indicating “the presence or absence of
a medical causal connection between benefits sought and the
alleged 	industrial 	injury 	or 	occupational 	disease.” 	Id. 	In
circumstances where the applicant fails to attach supporting
medical documentation to the application, the Commission may

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not mail that application “to the employer or insurance carrier
for 	answer 	until 	the 	appropriate 	documents 	have 	been
provided.” Id. R602-2-1(B)(3).
¶26 	Because 	Messersmith 	attached 	supporting 	medical
documentation to his application for hearing, flawed as it might
have 	been, 	his 	claim 	was 	sent 	to 	A-1 	for 	a 	response 	and
ultimately adjudicated in an evidentiary hearing.2 Consequently,
the provision of the Utah Administrative Code relied upon by
the 	Commission—authorizing 	the 	Commission 	to 	prevent
further proceedings on an application for hearing “until the
appropriate documents have been provided”—simply was not
applicable to Messersmith’s claim after the evidentiary hearing.
See id.
¶27 	The ALJ carefully considered all of the evidence and
found that Messersmith did not carry his burden of proof;
Messersmith’s 	supporting 	medical 	documentation 	did 	not
establish medical causation. This determination did not mean
that 	Messersmith’s 	application 	should 	have 	been 	dismissed
before a hearing. Nor did the insufficient evidence somehow
render 	the 	evidentiary 	hearing 	something 	less 	than 	an
adjudication 	of 	Messersmith’s 	claim.3 	Accordingly, 	the
2. In his briefing before this court, Messersmith emphatically
argues 	that 	he 	proffered 	sufficient 	supporting 	medical
documentation 	with 	his application 	for 	hearing. 	Indeed, 	he
“firmly 	believes 	the 	medical 	documentation 	he 	submitted
establishes” medical causation.
3. Messersmith relatedly posits that “if [his] supporting medical
documentation did not establish causation between the benefits he
sought and his industrial injury—as both the ALJ and the Labor
Commissioner concluded that it did not—then Messersmith’s
Application should have been rejected from the outset, and the
Labor 	Commission 	lacked 	jurisdiction 	to 	adjudicate 	it.”
(Emphasis 	added.) 	Whether 	an 	applicant 	ultimately 	proves
(continued…)

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Commission erred when, relying on procedural provisions of the
Utah Administrative Code, it effectively eliminated the ALJ’s
decision 	on 	the 	merits 	by 	providing 	an 	opportunity 	for
Messersmith 	to 	refile 	his work-related 	injury 	and 	disability
compensation claim.
CONCLUSION
¶28 	After 	considering 	all 	of 	the 	evidence 	and 	arguments
presented by the parties, the ALJ resolved Messersmith’s claim
for work-related injury and disability benefits on the merits. The
Commission erred when, in its review of the ALJ’s decision, it
modified the disposition to a dismissal without prejudice to
Messersmith’s refiling of his claim. Accordingly, we set aside the
Commission’s decision and reinstate the ALJ’s disposition of the
matter.
(…continued)
causation is a determination made by an administrative law
judge 	following 	an 	evidentiary 	hearing, 	unless 	resolved 	by
stipulation 	of 	the 	parties. 	See, 	e.g., 	Utah 	Admin. 	Code
R602-2-1(E)(1) 	(“The 	administrative 	law 	judge 	may 	use 	the
stipulated facts, medical records and evidence in the record to
make a final determination of liability or refer the matter to a
Medical Panel for consideration of the medical issues pursuant
to R602-2-2.”); see also Helf v. Industrial Comm’n, 901 P.2d 1024,
1027 (Utah Ct. App. 1995) (approving the order of the Industrial
Commission 	where 	the 	claimant 	“failed 	to 	establish, 	by 	a
preponderance of the evidence,” medical causation). In other
words, this is precisely the determination that the Commission
and the ALJ have jurisdiction to make.