Clawson v. Labor Commission, Division of Adjudication

2013 UT App 123
_________________________________________________________

THE UTAH COURT OF APPEALS

RANDY JAMES CLAWSON,
Petitioner,
v.
LABOR COMMISSION, DIVISION OF ADJUDICATION; STAR FOUNDRY
AND MACHINE; AND WORKERS COMPENSATION FUND,
Respondents.

Memorandum Decision
No. 20110333‐CA
Filed May 16, 2013

Original Proceeding in this Court

David J. Holdsworth, Attorney for Petitioner
Hans M. Scheffler, Attorney for Respondents
Workers Compensation Fund and Star Foundry
and Machine
Alan L. Hennebold, Attorney for Respondent
Labor Commission, Division of Adjudication

JUDGE STEPHEN L. ROTH authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and
MICHELE M. CHRISTIANSEN concurred.

ROTH, Judge:

¶1 Petitioner Randy James Clawson petitions for review of a
Utah Labor Commission Appeals Board (the Board) decision to
deny his claim for permanent total disability compensation. See
generally Utah Code Ann. § 34A‐2‐413(1) (LexisNexis 2011). We set
aside the Board’s decision and direct the Board to reconsider
Clawson’s claim.
Clawson v. Labor Commission

¶2 In 1975, Clawson dropped out of tenth grade and started
working at Star Foundry. He is now in his fifties and has been
employed there for over thirty years. Over the course of his
employment, Clawson was exposed to silica dust, which can cause
scarring and inflammation in the lungs when inhaled. During the
last few years of his employment at Star Foundry, Clawson was
diagnosed with silicosis as a result of his exposure to and
inhalation of silica dust.1

¶3 Clawson started smoking around the same time he started
working at Star Foundry. For about fifteen years he smoked three
packs a day but has since reduced his smoking to about ten
cigarettes a day. Clawson has also been diagnosed with chronic
bronchitis and chronic obstructive pulmonary disease (COPD),
which are apparently related to his smoking.

¶4 In 2006, Clawson began experiencing symptoms such as
shortness of breath, syncope, and loss of balance. Because these
symptoms interfered with his ability to work, Clawson took a
medical leave of absence. He then applied for permanent total
disability benefits with the Labor Commission (the Commission).
With his application, he submitted the opinions of several doctors
who had examined and diagnosed him. Two of the doctors agreed
that Clawson should avoid any further exposure to silica dust,
explaining that “[t]he nature of this disease is progressive, even
without additional exposure,” and the disease’s natural
progression can be “exacerbated by additional exposure to silica”

1. Over the course of his thirty‐year employment at Star Foundry,
Clawson worked various jobs in production and maintenance.
During most of his employment he worked in the foundry area,
where he was exposed to silica dust. However, during the last two
years that he was employed at Star Foundry, Clawson worked in
the office building, which was located in an area separate from the
foundry. Although his job duties at that time were mostly
conducted outside of the foundry, he was nonetheless required to
go into the foundry three to four times per day for about thirty
minutes at a time.

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dust. Although a third doctor initially agreed that Clawson should
avoid any further exposure to silica dust, he later opined that
Clawson could work in an environment with very low levels of the
dust because it “would not increase his risk for future respiratory
damage.” Also, three doctors2 disagreed about the cause of the
symptoms that had initially interfered with Clawson’s ability to
work, i.e., the shortness of breath, syncope, and loss of balance.
One doctor opined that Clawson’s silicosis was the cause of those
symptoms while the other two opined that those symptoms were
caused by other medical disorders, with one doctor in particular
attributing the symptoms to Clawson’s smoking.

¶5 Clawson’s claim was submitted to an Administrative Law
Judge (the ALJ) for decision. Due to the differing opinions of
Clawson’s doctors, the ALJ found that there was a “medical
controversy” on the issues of (1) whether Clawson should avoid
further exposure to silica dust and (2) the medical cause of his
symptoms. Those issues were referred to a medical panel for
review. In its report, the medical panel first addressed the medical
cause of Clawson’s symptoms. The panel agreed that Clawson had
been correctly diagnosed with silicosis but concluded that
Clawson’s silicosis was not the cause of his shortness of breath,
syncope, and loss of balance. Rather, the panel concluded that
Clawson’s chronic bronchitis/COPD was the more likely cause of
those symptoms. The panel then explained that “[s]imple silicosis
. . . progresses only very slowly, if at all” and “is not associated
with clinically significant pulmonary problems when
uncomplicated by infection or autoimmune disease,” so “[w]ithout
the onset of progressive massive fibrosis, no significant adverse
pulmonary consequence is expected in silicosis.” However, the
panel also stated that Clawson should not “work in an

2. There are a total of four doctors whose opinions are relevant
here. Two of those doctors opined about whether Clawson should
avoid further exposure to silica dust and about the medical cause
of his symptoms. A third doctor only opined about whether he
should avoid further exposure to silica dust, while the fourth
doctor only opined about the medical cause of his symptoms.

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environment that exposes him to any silica dust.” The panel
explained that “an individual with an exposure history to . . . silica
leading to any degree of pneumoconiosis should avoid further
exposure” because “the only effective treatment (and preventive
measure) for this disorder is removal from exposure.”

¶6 The ALJ concluded that Clawson was entitled to receive
disability benefits. The Commission appealed the ALJ’s decision to
the Board, which reversed the ALJ and denied Clawson’s claim,
with one member dissenting. Clawson now seeks judicial review,
challenging the Board’s determination that he is not entitled to
permanent total disability benefits.

¶7 Under the Workers’ Compensation Act, “[t]o establish
entitlement to permanent total disability compensation, the
employee shall prove by a preponderance of the evidence that
(i) the employee sustained a significant impairment . . . as a result
of the . . . occupational disease that gives rise to the permanent total
disability entitlement; (ii) the employee has a permanent, total
disability; and (iii) the . . . occupational disease is the direct cause
of the employee’s permanent total disability.” Utah Code Ann.
§ 34A‐2‐413(1)(b) (LexisNexis 2011). “To establish that an employee
has a permanent, total disability,” the act requires that the
employee “prove by a preponderance of the evidence that” the
employee is unable to work. Id. § 34A‐2‐413(1)(c)(i)–(iv).

¶8 In applying these statutory factors to Clawson’s claim for
disability benefits, the ALJ recognized that Clawson’s silicosis was
the basis for his claim. Based on the medical panel’s report, the ALJ
concluded that Clawson’s silicosis was not the cause of the
symptoms that had originally interfered with his ability to work;
rather, the ALJ concluded that Clawson’s “symptoms of shortness
of breath, syncope and loss of balance are medically caused by
chronic bronchitis/COPD.” The ALJ nonetheless concluded that
Clawson’s silicosis entitled him to receive disability benefits. The
ALJ reasoned that Clawson’s silicosis was a significant impairment
because it “prevents him from [having] any exposure to silica
dust.” And because he should avoid any exposure to silica dust,

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the silicosis rendered Clawson unable to work, thus making the
disease the direct cause of a permanent total disability. The ALJ
explained that although the symptoms that were related to his
chronic bronchitis/COPD initially contributed to his inability to
work, “it is the limitation that [he] have no exposure to silica dust
that prevents [Clawson] from working” and renders him
permanently and totally disabled.

¶9 The Board reversed the ALJ’s decision and denied
Clawson’s claim for disability benefits. The Board agreed with the
ALJ that, based on the medical panel’s report, “Clawson’s
symptoms were caused by chronic bronchitis/COPD.” But the
Board concluded that Clawson was not entitled to disability
benefits apparently because those symptoms were not attributable
to Clawson’s silicosis, and the silicosis itself had produced no
disabling physical manifestation. Specifically, the Board denied
Clawson’s claim on two grounds. First, the Board concluded that
Clawson’s silicosis was not a significant impairment:

Clawson’s simple silicosis is not associated with
clinically significant pulmonary problems, and no
significant pulmonary consequence was expected
with respect to his work‐related silicosis. Thus, while
there is no dispute that . . . Clawson developed
silicosis from his work at Star [Foundry], the
evidence shows that his silicosis is not a significant
impairment.

See generally id. § 34A‐2‐413(1)(b)(i) (requiring a significant
impairment to be eligible for benefits). Second, the Board
concluded that the silicosis was not the direct cause of a permanent
total disability:

The medical panel’s report indicates that . . .
Clawson’s condition was not the cause of his
lightheadedness, syncope, shortness of breath or
other symptoms. In fact, the medical panel’s report
indicates that . . . Clawson’s symptoms were caused

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by chronic bronchitis/COPD which were attributable
to his history of heavy smoking.

See generally id. § 34A‐2‐413(1)(b)(iii) (requiring that the
occupational disease be a direct cause of permanent total disability
to be eligible for benefits). Because the Board’s conclusions
effectively disposed of Clawson’s claim, the Board did not reach
the issue of whether Clawson was permanently and totally
disabled due to an inability to work. See generally id. § 34A‐2‐
413(1)(b)(ii), (c) (providing that an employee must prove a
permanent and total disability to be eligible for benefits, and
setting forth factors to determine such a disability).

¶10 We set aside the Board’s decision and instruct the Board to
revisit the issue because we conclude that the Board failed to fully
consider Clawson’s silicosis as a basis for his claimed disability. As
we have explained, Clawson has been diagnosed with two separate
medical disorders that are relevant to his claim for disability
benefits: silicosis and chronic bronchitis/COPD.3 Clawson’s silicosis
is indisputably the result of his exposure to silica dust while
employed at Star Foundry. At this stage in the proceedings, it is
mostly undisputed that Clawson’s smoking‐related chronic
bronchitis/COPD is the medical cause of the symptoms that
initially prevented him from working, i.e., shortness of breath,
syncope, and loss of balance.4 The Board’s decision denying

3. Clawson also suffers from an industrial lower back injury and
anxiety‐related hyperventilation, but those conditions are not
relevant to our analysis of the Board’s decision, though the Board
may consider them upon further review as appropriate.

4. Both the ALJ and the Board concluded, based on the medical
panel’s report, that Clawson’s chronic bronchitis/COPD is the
medical cause of these symptoms. Clawson does not challenge this
conclusion on appeal and even explains that the cause of these
symptoms is “not . . . the central issue” and is “largely irrelevant.”
Instead, Clawson argues that the ultimate issue is whether he is
(continued...)

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Clawson’s claim for permanent total disability benefits seems to be
the result of its focus on these symptoms. Indeed, it appears that
the Board assumed that those symptoms were the only basis for
Clawson to claim disability, and having determined that the
silicosis was not the medical cause of those symptoms, the Board
simply denied his claim.

¶11 As a consequence, the Board failed to consider whether
Clawson’s silicosis could provide a basis for an award of benefits
independent of these symptoms. Indeed, the dissenting board
member identified the flaw in the Board’s reasoning, explaining
that the Board had improperly focused on Clawson’s chronic
bronchitis/COPD and the related symptoms while ignoring the
independent significance of his silicosis:

The [majority’s] argument essentially is the
following: . . . Clawson suffers from chronic
bronchitis/COPD. This disease resulted in the
symptoms of syncope, light headedness and
shortness of breath. As a result of these
symptoms, . . . Clawson was forced to resign from his

4. (...continued)
entitled to permanent total disability benefits due to his silicosis
requiring that he not be exposed to any silica dust, which
ultimately prevents him from working at his only viable
occupation. Clawson also argues on appeal that, in addition to his
smoking, his silicosis could have contributed to his chronic
bronchitis/COPD. However, because the ALJ’s and the Board’s
conclusions that these conditions are related to his smoking and not
his silicosis are based on the medical panel’s report as well as the
opinions of other doctors, these conclusions are supported by
substantial evidence, and we decline to disturb them. See generally
Utah Code Ann. § 63G‐4‐403(4)(g) (LexisNexis 2012) (explaining
that an agency’s factual findings are reviewed for substantial
evidence); Martinez v. Media–Paymaster Plus/Church of Jesus Christ
of Latter‐day Saints, 2007 UT 42, ¶¶ 23, 35–36, 164 P.3d 384
(explaining the substantial evidence standard of review).

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employment. The disease was caused by . . .
Clawson’s history of smoking. Therefore, . . .
Clawson did not prove that he is entitled to
permanent total disability compensation.

The problem with the [majority’s] use of facts
is that it totally ignores a different, more relevant, set
of facts which goes as follows: . . . Clawson suffers
from the disease of “simple silicosis.” This disease
was caused by his employment . . . . After . . .
Clawson left his employment because of his chronic
bronchitis/COPD, it was discovered that . . . Clawson
should not work at [Star Foundry] because of his
“simple silicosis” disease.

We believe that the dissent accurately identifies a material omission
in the Board’s decision: the Board did not consider whether
Clawson’s silicosis itself provides an independent basis for him to
receive permanent total disability benefits.

¶12 We emphasize, however, that our decision is not intended
to provide a definitive interpretation of the relevant statutory
authority or a binding analysis of the pertinent facts or the
application of the law to those facts. Rather, those tasks are
reserved for the Board when it revisits the issue because it is the
entity that ought to make determinations of that kind in the first
instance, and given the limits of the Board’s decision, it has not yet
done so.5 We therefore instruct the Board to reconsider the issue,

5. Our case law has recognized certain parts of Utah Code section
34A‐2‐413(1)(b) and (1)(c) as calling for factual determinations to be
made by the reviewing agency—here, the Board. See, e.g., Martinez,
2007 UT 42, ¶¶ 23, 30–33. And we review such factual
determinations to determine whether they are based on substantial
evidence, a standard that requires us to afford considerable
deference to the reviewing agency. See id. ¶¶ 23, 35–36 (noting that
an administrative law decision meets the substantial evidence test
(continued...)

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and we provide the following analysis to more fully explain why
we believe the Board ought to consider an issue it seems to have
bypassed in reaching its decision in this matter. Cf. State v. Sellers,
2011 UT App 38, ¶ 23, 248 P.3d 70 (“[W]e have discretion to
address the issues that are likely to recur during the new trial to
guide the trial court on remand.”).
I. Clawson’s Occupational Disease May Constitute a Significant

5. (...continued)
when “a reasonable mind might accept as adequate the evidence
supporting the decision”). Similarly, although interpretation of a
statute typically presents a question of law that is reviewed for
correctness, see Utah Code Ann. § 63G‐4‐403(4)(d), portions of this
statute have been recognized as granting the reviewing agency
discretion to interpret its terms, meaning that the agency’s
interpretation need only be reasonable. See, e.g., LPI Servs. v. McGee,
2009 UT 41, ¶ 7, 215 P.3d 135 (explaining that when the operative
statutory language grants discretion to the agency to interpret the
statutory provision at issue, the agency’s interpretation need only
be reasonable); id. ¶¶ 23–24 (concluding that the statutory language
in section 34A‐2‐413(1)(c) that inquires whether a claimant is able
to perform “other work reasonably available” “implicitly grant[s]
discretion to the Commission to interpret it” because
“reasonableness is a broad, general, and subjective concept” and
“its meaning depends on the context in which it is applied”
(citation and internal quotation marks omitted)). In addition, a
reviewing agency’s application of a set of facts to the law is
afforded a degree of deference and is reviewed for reasonableness
and rationality. See Peterson Hunting v. Labor Comm’n, 2012 UT App
14, ¶ 12, 269 P.3d 998. Thus, our ability to review the Board’s
decision here—whether it amounts to an interpretation of the
statute or the application of the statutory law to the facts of the
case—is contingent on the Board actually making a decision by
taking into account all the facts of the case to which the statutory
scheme might reasonably have application. Where, as here, the
Board has not reached what appears to us to be a relevant issue, we
should not resolve the issue in the first instance but must remand
for further consideration by the Board.

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Impairment.

¶13 “To establish entitlement to permanent total disability
compensation, [Clawson must] prove by a preponderance of the
evidence that” he “sustained a significant impairment . . . as a
result of the . . . occupational disease that gives rise to the
permanent total disability entitlement.” See Utah Code Ann. § 34A‐
2‐413(1)(b)(i) (LexisNexis 2011). An occupational disease is “any
disease or illness that arises out of and in the course of employment
and is medically caused or aggravated by that employment.” Id. §
34A‐3‐103. And an impairment is “a purely medical condition
reflecting an anatomical or functional abnormality or loss.” Id. §
34A‐2‐102(1)(h).

¶14 The parties agree that Clawson’s silicosis is an occupational
disease. They disagree, however, about whether the disease has
resulted in a “significant impairment.” That Clawson’s silicosis
constitutes an “impairment” as that term is defined by statute
seems indisputable because silicosis is a “medical condition” that
“reflect[s] an anatomical or functional abnormality or loss” in the
form of inflammation and scarring of his lungs. The question is
whether the impairment is significant. See, e.g., Webster’s Ninth New
Collegiate Dictionary 1096 (9th ed. 1986) (defining “significant” as to
“hav[e] meaning” or to “hav[e] or likely . . . have influence or
effect”).

¶15 Silicosis is a progressive disease. It may take years of
inhaling silica dust for the disease to manifest. But once it does, it
can grow in severity even without further inhalation of silica dust,
though further inhalation may hasten the natural progression of
the disease. Because of the progressive nature of the disease, two
doctors who examined Clawson opined that he should not have
any further exposure to silica dust because such exposure could
exacerbate the disease. In particular, one doctor opined, “[t]he
nature of this disease is progressive, even without additional
exposure, and will eventually cause increased shortness of breath
and problems breathing in the patient. This would be exacerbated
by additional exposure to silica [dust].” Another doctor agreed that

20110333‐CA 10 2013 UT App 123
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Clawson should have “no exposure” to silica dust, explaining that
there was a “strong possibility of slow worsening” of the silicosis
“even if exposure [to silica dust] stops.” Both doctors therefore
recommended unequivocally that Clawson avoid any exposure to
silica dust so as to prevent exacerbation of the disease.6

¶16 The medical panel was more skeptical about the severity of
Clawson’s silicosis, reasoning that “[s]imple silicosis . . . progresses
only very slowly, if at all,” and “is not associated with clinically
significant pulmonary problems when uncomplicated by infection
or autoimmune disease.” Nevertheless, the medical panel agreed
that Clawson should not “work in an environment that exposes
him to any silica dust,” explaining that “an individual with an
exposure history to crystalline silica leading to any degree of
pneumoconiosis should avoid further exposure” because “the only
effective treatment (and preventive measure) for this disorder is
removal from exposure.” The medical panel’s report seems to
indicate that Clawson’s silicosis could lead to clinically significant
complications if he were exposed to silica dust. So although
Clawson’s doctors and the medical panel disagreed about the
current severity of Clawson’s silicosis and the likelihood that it
would progress on its own, the two doctors and the panel agreed
that any further exposure to silica dust should be entirely avoided,
apparently because such exposure could cause progression or
exacerbation of the disease.

¶17 In denying Clawson’s claim for disability benefits, however,
the Board relied on the medical panel’s report to conclude that his
silicosis was not a significant impairment because it was “not
associated with clinically significant pulmonary problems.” The
Board also emphasized that the silicosis was not the cause of the
symptoms that had previously prevented Clawson from working,

6. A third doctor initially agreed that Clawson should avoid any
further exposure to silica dust but later opined that Clawson could
return to a work environment where he was exposed to very low
levels of silica dust because it “would not increase his risk for
future respiratory damage.”

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i.e., the lightheadedness, syncope, and shortness of breath. Thus,
the Board’s conclusion that the silicosis had not resulted in a
significant impairment appears to be based on the fact that the
silicosis had not yet manifested in a way that was symptomatic, or
at least was not associated with the overt symptoms that had
previously interfered with Clawson’s ability to work. But in
focusing on the absence of manifest symptoms in determining
whether Clawson’s silicosis was a significant impairment, the
Board failed to address the concern raised in the medical panel’s
report that Clawson’s silicosis could be exacerbated by further
exposure to silica dust. Because the medical panel and at least two
other doctors opined that, due to the progressive nature of silicosis,
Clawson should avoid any further exposure to silica dust, the
Board should have considered this reasoning in determining the
significance of the impairment posed by Clawson’s silicosis.
Therefore, we direct the Board to consider whether, under the
circumstances of this case, the progressive nature of Clawson’s
silicosis constitutes a significant impairment. See, e.g., Peterson
Hunting v. Labor Comm’n, 2012 UT App 14, ¶ 12, 269 P.3d 998
(explaining that the Board’s application of a set of facts to the law
is afforded some deference and is reviewed for reasonableness and
rationality); see also LPI Servs. v. McGee, 2009 UT 41, ¶ 7, 215 P.3d
135 (explaining that although interpretation of a statute typically
presents a question of law that is reviewed for correctness, when
the operative statutory language grants discretion to the agency to
interpret the statutory provision at issue, the agency’s
interpretation need only be reasonable).

II. Clawson’s Silicosis May Be the Direct Cause of a Permanent
Total Disability that Renders Him Unable to Work.

¶18 “To establish entitlement to permanent total disability
compensation, [Clawson must] prove by a preponderance of the
evidence that” he “is permanently and totally disabled” and that
his occupational disease—the silicosis—“is the direct cause of the
. . . permanent total disability.” See Utah Code Ann. § 34A‐2‐
413(1)(b)(ii)–(iii) (LexisNexis 2011). In addition, to establish that he
is permanently totally disabled, Clawson must “prove by a

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preponderance of the evidence” that he is unable to work. See id.
§ 34A‐2‐413(c)(i)–(iv) (listing several factors that explore generally
whether a claimant is unable to work and, thus, is permanently and
totally disabled). In denying Clawson’s claim for disability benefits,
the Board concluded that Clawson’s silicosis was not the direct
cause of a permanent total disability, yet it did not decide whether
Clawson was unable to work and, therefore, permanently and
totally disabled. For ease of analysis, we will address both aspects
of this analysis together rather than independently.

¶19 In concluding that Clawson’s silicosis was not the direct
cause of a permanent total disability, the Board reasoned that the
silicosis “was not the cause of [the] lightheadedness, syncope,
shortness of breath or other symptoms” that had previously
prevented Clawson from working; rather, the Board reasoned that
these “symptoms were caused by chronic bronchitis/COPD which
were attributable to his history of heavy smoking.” As we have
discussed, the evidence fully supports the Board’s determination
that Clawson’s silicosis was not the medical cause of these
symptoms. As the ALJ, the Board, and the medical panel all
concluded, the symptoms are attributable to Clawson’s chronic
bronchitis/COPD. See supra ¶ 10 & n.4. But as the dissenting board
member pointed out, by focusing only on Clawson’s chronic
bronchitis/COPD and the related symptoms, the Board assumed
that these medical conditions were the only possible cause of
Clawson’s permanent total disability under the circumstances. As
a consequence, the Board overlooked the issue of whether
Clawson’s silicosis was the direct cause of a permanent total
disability based on its impact on his ability to work.

¶20 As explained in the medical report, Clawson should not
“work in an environment that exposes him to any silica dust.” The
medical panel opined “that an individual with an exposure history
to crystalline silica leading to any degree of pneumoconiosis should
avoid further exposure” because “the only effective treatment (and
preventive measure) for this disorder is removal from exposure.”
And this conclusion is generally consistent with that of the other
doctors who examined Clawson. See supra ¶¶ 4–5 & n.2.

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¶21 Based on the medical panel’s reasoning, as well as the
reasoning of his doctors, Clawson should not work in an
environment that exposes him to any silica dust because inhaling
silica dust may cause his silicosis to worsen and become
symptomatic. As a result, Clawson would not be able to enter any
area at his work place where he might be exposed to silica dust.
And if Clawson were unable to be in certain areas at work, that
could potentially render him unable to work and, thus, make him
permanently and totally disabled. Therefore, viewing the facts in
this way, as did the ALJ and the dissenting board member, the
silicosis may be the direct cause of a permanent total disability.
Because the Board did not address the issue from this perspective
in its decision, it should do so when it reconsiders the petition.

¶22 The Board also did not address in its decision whether
Clawson is permanently and totally disabled. See Utah Code Ann.
§ 34A‐2‐413(1)(b)(ii), (c). In particular, the Board did not address
whether Clawson is unable to work due to an impairment that
“limit[s his] ability to do basic work activities” and “prevent[s him]
from performing the essential functions of the work activities for
which [he is] qualified” or whether Clawson can “perform other
work reasonably available.” See id. § 34A‐2‐413(1)(c)(ii)–(iv).

¶23 The ALJ’s decision thoroughly addressed Clawson’s
inability to work, and Clawson and the Commission devoted
significant attention to this issue in their briefs on appeal, but the
Board did not reach the issue in its decision.7 Resolution of this

7. The primary dispute about Clawson’s ability to work seems to
concern his ability to perform a job that Star Foundry offered to
him in response to his doctor’s opinion that he should not be
exposed to any silica dust. According to Star Foundry, the offered
job was the same job he performed before he took his medical leave
of absence, except that he would no longer be required to go into
the foundry. See supra ¶ 2 n.1. In response, Clawson explained that
he was skeptical about whether he could perform any job at Star
(continued...)

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issue is a fact‐intensive process that invokes the Board’s discretion.
See, e.g., LPI Servs. v. McGee, 2009 UT 41, ¶ 27, 215 P.3d 135
(concluding that the Commission has been implicitly granted
discretion by statute to determine whether a claimant can perform
other work reasonably available); Martinez v. Media–Paymaster
Plus/Church of Jesus Christ of Latter‐day Saints, 2007 UT 42, ¶¶ 23,
30–33, 164 P.3d 384 (explaining that the statutory factors to
determine whether a claimant is entitled to permanent total
disability benefits call for factual determinations, and in particular
determining whether the claimant can perform essential job
functions or can perform other work reasonably available are
factual determinations that should be made by the agency and
reviewed under the substantial evidence standard). Thus, the initial
determination of whether Clawson is able to work by analyzing the
relevant statutory factors is best resolved by the Board. We
therefore set aside the Board’s decision and instruct it to reconsider
the issue.

III. Conclusion

¶24 In conclusion, we vacate the Board’s decision and instruct
the Board to reconsider Clawson’s claim. The Board should decide
whether Clawson’s silicosis has resulted in or is itself a significant
impairment due to it being a progressive disease that may be
exacerbated by further exposure to silica dust. The Board should
also decide whether Clawson’s silicosis is the direct cause of a
permanent total disability due to the fact that Clawson should not
be exposed to any silica dust, which may potentially render him
unable to work. The Board must also decide whether Clawson is,

7. (...continued)
Foundry without being exposed to silica dust—for example, even
if he were only to work in the office building, he could still be
exposed to silica dust that was brought into the office building on
the clothing of other employees who worked in the foundry area.
We do not reach this issue because it is a factual matter that must
be resolved by the Board.

20110333‐CA 15 2013 UT App 123
Clawson v. Labor Commission

in fact, permanently and totally disabled due to an inability to
work.

20110333‐CA 16 2013 UT App 123