Stevenson v. Labor Commission

2021 UT App 101
THE UTAH COURT OF APPEALS
JASON T. S TEVENSON ,
Petitioner,
v.
LABOR C OMMISSION , PSC LLC, A CE A MERICAN I NSURANCE,
A MERICAN NUTRITION , AND PHOENIX I NSURANCE/TRAVELERS
Respondents.
Opinion
No. 20200266-CA
Filed September 30, 2021
Original Proceeding in this Court
Rex C. Bush, Virginius Dabney, and Stony Olsen,
Attorneys for Petitioner
Mark R. Sumsion and Lori L. Hansen, Attorneys for
Respondent American Nutrition and Phoenix
Insurance/Travelers
Christin Bechmann, Mark R. Sumsion and Jeffrey A.
Callister, Attorneys for Respondent PSC LLC and
Ace American Insurance
JUDGE DIANA H AGEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. HARRIS
concurred.
HAGEN, Judge:
¶1 	Jason T. Stevenson brought a claim against two of his
former employers for workers’ compensation benefits related to
his chronic lung disease, which he alleges resulted from his
exposure to toxic fumes at work. An administrative law judge
(the ALJ) dismissed the claim as untimely, and the Utah Labor
Commission affirmed that decision. Because we find that the
Commission correctly interpreted the operative statute, and that

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its timeliness findings were supported by substantial evidence,
we decline to disturb the Commission’s decision.
BACKGROUND
¶2 	Stevenson worked for respondent American Nutrition
from approximately 2009 to 2012 and for respondent PSC LLC
for 	a 	few 	months 	in 	2012 	(collectively, 	Employers). 	While
working for Employers, he was exposed 	to acidic cleaning
agents.
¶3 	Over 	the 	years, 	Stevenson 	experienced 	worsening
lung-related issues. In 2015, he was seen by several physicians
who diagnosed him with various lung conditions. In March
2016, he began receiving social security disability benefits based
on a diagnosis of pulmonary fibrosis.
¶4 	In early June 2016, Stevenson visited Dr. Hallenborg, a
pulmonologist. 	Dr. 	Hallenborg 	drew 	a 	causal 	connection
between 	Stevenson’s 	lung 	condition 	and 	his 	occupational
exposure 	to 	toxic 	fumes. 	In 	notes 	dated 	June 	5, 	2016, 	Dr.
Hallenborg recounted the following history:
The 	patient 	was 	exposed 	at 	work 	at 	[PSC] 	to
apparent acid cleaning. The patient was cleaning
an area with acid and had inadequate respiratory
protection 	and 	some 	shortness 	of 	breath, 	but
persistent for over a year. . . .[W]orking for . . .
American Nutrition cleaning after the manufacture
of dog food, [he] was also exposed to acid wash.
Dr. 	Hallenborg 	recorded 	his 	impressions 	of 	Stevenson’s
condition as “toxic fume inhalation with devastating damage to
his respiratory reserve, with pulmonary function abnormality
and CAT scan changes of bilateral fibrosis.” After conducting a
bronchoscopy two days later, Dr. Hallenborg concluded,

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The patient is a 40-year-old gentleman who after
working with acid wash in 2 different places of
employment 	developed 	hypoxemia 	and 	acute
shortness of breath. He was found to have severe
scarring of both lungs, bilateral emphysema, [and]
ground-glass appearance of lungs . . . .
In his testimony, Stevenson confirmed that Dr. Hallenborg had
told him, “Your lung issue is due to toxic acid.” Stevenson’s wife
testified that Dr. Hallenborg suggested, “If I were you, I would
get an attorney.”
¶5 	Stevenson ultimately retained counsel in January 2017. At
that 	time, 	counsel 	sent 	notice 	to 	Employers 	stating 	that
Stevenson “has an occupational disease which he believes was
caused by chemicals he was exposed to while working for your
company.” See Utah Code Ann. § 34A-3-108(2)(a) (LexisNexis
2019) 	(stating 	that 	an 	employee 	must 	notify 	the 	employer,
“within 180 days after the cause of action arises” that the
employee intends to make a claim for “benefits arising from [an]
occupational disease”).
¶6 	On March 21, 2017, Dr. Hallenborg completed a summary
of medical record form for “Occupational Exposure.” The form
stated Dr. Hallenborg’s diagnosis as “toxic fume 	inhalation
causing 	acute 	and 	chronic 	interstitial 	lung 	disease.” 	Dr.
Hallenborg opined that Stevenson was 100% disabled and that
occupational exposure had caused his medical condition.
¶7 	Thereafter, Stevenson filed a claim with the Commission
under Utah’s Occupational Disease Act (the Act), alleging that
his 	interstitial 	lung 	disease 	was 	caused 	by 	his 	work 	for
Employers. After an evidentiary hearing, the ALJ dismissed the
claim 	as 	untimely 	because 	Stevenson 	had 	failed 	to 	notify
Employers, as required by the Act, within 180 days after his
cause of action arose. To calculate the date on which the cause of
action arose, the ALJ was required to determine when Stevenson

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knew, or in the exercise of reasonable diligence should have
known, that he had a disabling occupational disease caused by
his employment. See id. § 34A-3-108(2)(b). The ALJ determined
that the cause of action arose when Stevenson “was told by Dr.
Hallenborg on June 5, 2016, that his lung condition was caused
by his work exposure.” The ALJ explained:
Although there are medical records . . . showing
that Petitioner at least contemplated the connection
between his condition and work [earlier,] . . .
[g]iven the lack of positive diagnosis, . . . the Court
finds that the connection was only speculative and
that 	Petitioner 	did 	not 	know 	nor 	should 	he
reasonably 	have 	known 	that 	his 	occupational
disease was caused by his employment until the
diagnosis of Dr. Hallenborg on June 5, 2016.
Because Stevenson first notified his employers in January 2017,
more than 180 days later, the ALJ concluded that the Act barred
his claim.
¶8 	The ALJ also rejected a number of motions Stevenson
filed following the evidentiary hearing. Relevant to this appeal,
Stevenson had moved for sanctions under rule 37 of the Utah
Rules of Civil Procedure, claiming that Employers had failed to
maintain required employee exposure records. The ALJ denied
that motion because, among other things, Stevenson had not
shown how the alleged spoliation of evidence had prejudiced his
claim.
¶9 	The Commission affirmed the ALJ’s order dismissing
Stevenson’s claim because Stevenson “failed to provide notice of
his occupational disease to [Employers] within 180 days of when
he knew or should have known that such disease arose out of
and 	in 	the 	course 	of 	his 	employment.” 	In 	particular, 	the
Commission 	agreed 	with 	the 	ALJ’s 	“decision 	to 	give 	Mr.
Stevenson the benefit of the doubt and find that he knew or

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reasonably 	should 	have 	known 	about 	the 	potential 	causal
connection 	between 	his 	respiratory 	condition 	and 	the
occupational exposure as of June 5, 2016, when Dr. Hallenborg
described it.” However, the Commission declined to reach the
issue of sanctions, finding that the threshold issue of timeliness
was dispositive.
¶10 	Stevenson moved for reconsideration, arguing that “he
did not suffer from the specific occupational disease for which
he claims benefits until Dr. Hallenborg diagnosed him with
chronic interstitial lung disease in March 2017.” The Commission
rejected this argument, noting that “it is clear from the record
that he was suffering disability from his respiratory condition
prior 	to 	March 	2017 	or 	else 	he 	would 	not 	have 	notified
[Employers] of an occupational disease in his January 2017
letter.” Moreover, the Commission explained that “the statutory
phrase ‘knows, or in the exercise of reasonable diligence should
have known’ does not connote a definitive finding regarding
causation, nor does it require a specific diagnosis.” Because
Stevenson 	“knew 	his 	respiratory 	condition 	was 	potentially
caused by his occupational exposure with [Employers] prior to
Dr. Hallenborg’s more refined diagnosis of chronic interstitial
lung disease,” the Commission denied Stevenson’s request for
reconsideration.
ISSUES AND STANDARDS OF REVIEW
¶11 	Stevenson now seeks judicial review and presents two
issues for our consideration. First, Stevenson contends that the
Commission erred in affirming the ALJ’s order dismissing his
claim for failure to timely notify Employers of the occupational
disease. “The Labor Commission’s interpretation of a statute is a
question of law, which we review for correctness.” Massengale v.
Labor Comm'n, 2020 UT App 44, ¶ 4, 462 P.3d 417 (cleaned up).
But subsidiary factual determinations—here, when Stevenson
knew or should have known that he was disabled from an

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occupational disease caused by his employment—are questions
of fact. See Ockey v. Lehmer, 2008 UT 37, ¶ 34, 189 P.3d 51. When
the Commission’s action is based on a determination of fact, we
may 	grant 	relief 	only 	if 	the 	facts 	are 	“not 	supported 	by
substantial evidence when viewed in light of the whole record
before the court.” Utah Code Ann. § 63G-4-403(4)(g) (LexisNexis
2019). “A decision is supported by substantial evidence if there is
a quantum and quality of relevant evidence that is adequate to
convince a reasonable mind to support a conclusion.” Provo City
v. Utah Labor Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242 (cleaned
up).
¶12 	Stevenson 	also 	contends 	the 	Commission 	erred 	in
declining to reach the issue of sanctions. But because we decline
to disturb the Commission’s decision dismissing Stevenson’s
claim for occupational disease benefits, we have no occasion to
consider Stevenson’s argument that he would have been entitled
to sanctions for spoliation of evidence if his claim had been
adjudicated.1
1. During oral argument before this court, Stevenson’s counsel
suggested that, if the Commission had granted the proposed
sanction of striking Employers’ answers and entering a default
judgment, Employers would have been unable to raise the notice
issue as an affirmative defense. But that assumes that striking
Employers’ answers would have been an appropriate sanction
for 	the 	spoliation 	alleged 	in 	this 	case. 	Stevenson’s 	claim
regarding the alleged spoliation of evidence has nothing to do
with when the 180-day notice period began to run; he does not
suggest, for instance, that Employers’ alleged failure to maintain
exposure records prevented him from learning that his disability
was caused by his employment. Under these circumstances,
there would be no basis for precluding Employers from raising
the timeliness issue.

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ANALYSIS
¶13 	Under 	the 	Act, 	employees 	who 	have 	sustained 	“an
occupational disease, as defined in this chapter, arising out of
and in the course of employment” must “promptly” notify their
employer. Utah Code Ann. § 34A-3-108(1) (LexisNexis 2021).2
And according to our legislature, in this context “promptly”
means within 180 days: “An employee who fails to notify the
employee’s employer or the division within 180 days after the
cause of action arises is barred from a claim of benefits arising
from 	the 	occupational 	disease.” 	Id. 	§ 	34A-3-108(2)(a). 	For
purposes of this statutory provision, a cause of action arises
when 	“the 	employee 	first: 	(i) 	suffers 	disability 	from 	the
occupational 	disease; 	and 	(ii) 	knows, 	or 	in 	the 	exercise 	of
reasonable diligence should have known, that the occupational
disease is caused by employment.” Id. § 34A-3-108(2)(b). The
Commission found that both criteria were satisfied no later than
June 5, 2016, when Dr. Hallenborg opined that Stevenson’s lung
condition was due to occupational exposure to toxic fumes while
working for Employers.
¶14 	Stevenson challenges this finding by arguing that Dr.
Hallenborg 	did 	not 	diagnose 	him 	with 	“interstitial 	lung
disease”—or any other specific disease—until March 2017 when
the doctor completed the “Occupational Exposure” form. He
argues 	that 	the 	employee 	must 	know 	that 	he 	is 	suffering
disability “from a named disease” and that “[n]otice of a lung
condition 	alone 	is 	insufficient 	to 	require 	that 	notice 	of 	an
occupational disease be given.”
¶15 	Stevenson’s 	argument 	overlooks 	the 	fact 	that
“occupational disease” is a defined term within the Act. And the
2. 	We 	quote 	the 	current 	version 	of 	this 	subsection 	for
convenience, as no material amendments to the statute have
been made since the events giving rise to this case.

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statutory definition is incompatible with Stevenson’s contention
that “occupational disease” is limited to a particular type of
diagnosis. The Act defines a compensable occupational disease
as “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. 	By 	defining 	“occupational
disease” to include “any disease or illness,” the Act does not
limit 	coverage 	to 	those 	employees 	who 	have 	received 	a
definitive diagnosis identifying “a named disease.”
¶16 	Here, the conditions identified in Dr. Hallenborg’s June 5
report—and tied to Stevenson’s occupational exposure—meet
the definition of “occupational disease” as defined in the Act. Dr.
Hallenborg 	described 	Stevenson’s 	condition 	as 	“toxic 	fume
inhalation with devastating damage to his respiratory reserve,
with pulmonary function abnormality and CAT scan changes of
bilateral fibrosis.” These conditions fall comfortably within the
broad category of “any disease or illness.”
¶17 	Moreover, even if we were to accept Stevenson’s cramped
interpretation, 	Dr. 	Hallenborg’s 	March 	2017 	diagnosis 	of
“interstitial lung disease” did not mark the first time Stevenson
was diagnosed with “a named disease.” Other physicians had
previously diagnosed Stevenson with chronic lung diseases,
including pulmonary fibrosis, which is a type of interstitial lung
disease.3 Stevenson knew that he suffered a disability from that
disease prior to his June 5, 2016 visit with Dr. Hallenborg—even
if 	he 	did 	not 	know 	until 	June 	5 	that 	the 	disease 	was
3. “Interstitial lung disease refers to a group of about 100 chronic
lung disorders characterized by inflammation and scarring that
make it hard for the lungs to get enough oxygen. The scarring is
called pulmonary fibrosis.” Interstitial Lung Disease: Pulmonary
Fibrosis, - JOHNS HOPKINS MEDICINE, https://www.hopkinsm
edicine.org/health/conditions-and-diseases/interstitial-lung-dise
ase-pulmonary-fibrosis# [https://perma.cc/MF63-GH5M].

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occupational—because he had “been receiving Social Security
Disability 	since 	March 	2016 	based 	on 	[his] 	diagnosis 	of
pulmonary fibrosis.” In addition, Stevenson notified Employers
in January 2017 that he had “an occupational disease which he
believes was caused by chemicals he was exposed to while
working for your company.” Given these facts, Stevenson cannot
credibly argue he lacked knowledge that he suffered from an
“occupational disease” until March 2017.
¶18 	Sufficient evidence supports the Commission’s finding
that the 180-day notice period began to run no later than June 5,
2016—the date on which Dr. Hallenborg drew the connection
between 	Stevenson’s 	disabling 	lung 	disease 	and 	his
employment. 	On 	that 	date, 	Dr. 	Hallenborg 	opined 	that
Stevenson’s condition had been caused by exposure to toxic
fumes while working for Employers. In his notes, Dr. Hallenborg
identified both workplaces and recounted that Stevenson had
been 	exposed 	to 	acid 	wash 	at 	both 	jobs. 	Dr. 	Hallenborg
concluded that Stevenson’s condition was due to “toxic fume
inhalation.” Two days later, after conducting a bronchoscopy,
Dr. Hallenborg again opined that Stevenson had developed the
lung conditions “after working with acid wash in 2 different
places of employment.” And Dr. Hallenborg specifically told
Stevenson, “Your lung issue is due to toxic acid.” At that point,
Stevenson knew, or should have known, that he had “any
disease or illness” that arose out of and was medically caused or
aggravated by his employment, triggering the 180-day notice
period. See id. § 34A-3-103.
¶19 	Finally, 	Stevenson 	argues 	that 	the 	Commission’s
application of the statute to the facts of this case functions as an
unconstitutional statute of repose. A statute of repose “prevents
suit a statutorily specified number of years after a particular
event 	occurs, 	without 	regard 	to 	when 	the 	cause 	of 	action
accrues.” Velarde v. Board of Reviews of Indus. Comm’n, 831 P.2d
123, 125 (Utah Ct. App. 1992). Because “a statute of repose may
bar the filing of a lawsuit even though the cause of action did not

Stevenson v. Labor Commission
20200266-CA 	10 	2021 UT App 101
arise until after the action was barred and although the injured
person was diligent in seeking a remedy,” statutes of repose may
run afoul of the Open Courts Clause of the Utah Constitution
unless there is “an effective and reasonable alternative remedy”
or “there is a clear social or economic evil to be eliminated.” Id.
at 126 (cleaned up).
¶20 	Utah Code section 34A-3-108 is not a statute of repose
because it does not bar a suit as untimely “without regard to
when the cause of action accrues.” See id. To the contrary, it
expressly provides that the notice period does not run until “180
days after the cause of action arises.” Utah Code Ann. § 34A-3-
108(2)(a) (LexisNexis 2021). Nor did the Commission apply the
statute in a manner that barred Stevenson’s claim before the
cause 	of 	action 	arose. 	Stevenson 	had 	all 	the 	information
necessary to file a claim under the Act no later than June 5, 2016.
Therefore, 	we 	find 	no 	merit 	in 	Stevenson’s 	claim 	that 	the
Commission’s 	application 	of 	the 	statute 	violates 	the 	Utah
Constitution’s Open Courts Clause.
CONCLUSION
¶21 	The Commission’s interpretation of the relevant notice
statute was correct, and its determination that Stevenson did not
notify Employers of his occupational disease claim within 180
days 	after 	that 	claim 	arose 	was 	supported 	by 	substantial
evidence. Accordingly, we decline to disturb the Commission’s
decision dismissing Stevenson’s claim.