Barker v. Labor Commission

2023 UT App 31

THE UTAH COURT OF APPEALS

DIRK W. BARKER,
Petitioner,
v.
LABOR COMMISSION, BURRELL MINING PRODUCTS, AND ZURICH
AMERICAN INSURANCE COMPANY OF ILLINOIS,
Respondents.

Opinion
No. 20220242-CA
Filed April 6, 2023

Original Proceeding in this Court

Virginius Dabney and Stony V. Olsen,
Attorneys for Petitioner
Bret A. Gardner and Kristy L. Bertelsen, Attorneys
for Respondents Burrell Mining Products and Zurich
American Insurance Company of Illinois

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 After being exposed to welding fumes, fly ash, cement, and
foam concentrate at work for approximately twenty-five years,
longtime cigarette smoker Dirk W. Barker was diagnosed with a
chronic breathing disorder that prevented him from working.
Barker sought and the Labor Commission approved his
application for permanent total disability benefits, but the Labor
Commission reduced those benefits by 75% based on its finding
that his disorder was 75% attributable to non-industrial causes—
i.e., his smoking. The Appeals Board (the Board) upheld that
determination. We are asked to review the Board’s interpretation
of the relevant statute to determine whether it permits
apportionment where a worker has only one disability but where
Barker v. Labor Commission

that disability results from a disease that has both industrial and
non-industrial causes. We hold that, on the facts of this case, it
does not, and therefore we set aside the Board’s decision and
remand for the Labor Commission to adjust its award
accordingly.

BACKGROUND

¶2 Barker worked for Burrell Mining Products (Burrell) from
1991 to 2016. During that time, he was exposed to welding fumes,
fly ash, cement, and foam concentrate. He also had a history of
smoking and non-industrial secondhand smoke exposure. In
2017, Barker was diagnosed with “severe, progressive, end-stage
COPD & emphysema” that was caused or aggravated by his work
for Burrell.

¶3 As a result of his diagnosis, Barker sought permanent total
disability workers’ compensation benefits. In the course of
discovery, Burrell requested that Barker be examined by a
medical expert retained by its insurer. Barker refused to
participate unless he could video and audio record the insurer’s
exam. Burrell filed a motion to compel, requesting that the
administrative law judge (ALJ) require Barker to undergo the
insurer’s exam even without recording it. Barker responded that
under rule 35 of the Utah Rules of Civil Procedure, he had the
right to record the insurer’s exam. This dispute continued for
some time, involving numerous motions and petitions, including
a petition for interlocutory review in this court, which we
determined to be premature. The ALJ finally ordered Barker to
participate in an insurer’s exam without recording it. Ultimately,
both sides did make audio recordings of the exam, but Barker was
not allowed to make a video recording.

¶4 After resolving the insurer’s exam issue, the ALJ held a
hearing on Barker’s benefits claim and referred the medical
questions to a medical panel. The medical panel concluded that
Barker’s COPD with emphysema rendered him unable to work

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and that this disease was the sole cause of his disability. In
addition, the panel concluded that Barker’s COPD was 25%
attributable to his occupational exposure and 75% attributable to
his smoking. Relying on the medical panel’s conclusions, the ALJ
found that Barker was permanently and totally disabled by his
disease but apportioned his benefits at the rate of 25%.

¶5 Barker requested that the Board review the ALJ’s decision,
arguing that his award should not be apportioned. In a 2-1
decision, the Board upheld the ALJ’s decision to apportion
benefits. Barker now requests review of that decision.

ISSUES AND STANDARDS OF REVIEW

¶6 Barker raises two primary issues for our review: (1)
whether he should have been permitted to make a video
recording of the insurer’s exam and (2) whether the Board
correctly apportioned his award.1 “Absent a grant of discretion,
an agency’s interpretation or application of statutory terms
should be reviewed under the correction-of-error standard.”
Barron v. Labor Comm’n, 2012 UT App 80, ¶ 8, 274 P.3d 1016
(quotation simplified). When reviewing “an agency’s
interpretation of its own rules,” we “defer[] to an agency’s
interpretation as long as it is both reasonable and rational.” Dorsey
v. Department of Workforce Services, 2012 UT App 364, ¶ 8, 294 P.3d
580 (quotation simplified).

ANALYSIS

I. Video Recording the Insurer’s Exam

¶7 The Utah Administrative Procedures Act allows
administrative agencies to create rules that “prescribe means of

1. Barker raises additional issues that we need not address in light
of our ruling on the issues at hand.

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discovery adequate to permit the parties to obtain all relevant
information necessary to support their claims or defenses.” Utah
Code § 63G-4-205(1). But if an agency does not enact its own rules
governing the discovery process, Utah law allows the parties to
an administrative proceeding to “conduct discovery according to
the Utah Rules of Civil Procedure.” Id.; accord Utah Admin. Code
R602-2-1(P) (providing that “[i]n formal adjudicative
proceedings, the [Labor Commission’s Division of Adjudication]
shall generally follow the Utah Rules of Civil Procedure regarding
discovery . . . except as the Utah Rules of Civil Procedure are
modified by” evidentiary rules in the Workers’ Compensation Act
or the Utah Administrative Code).

¶8 Rule 35 of the Utah Rules of Civil Procedure, which
governs defense-side medical examinations, allows them “only
on motion for good cause shown.” Utah R. Civ. P. 35(a). In
addition, the rule contains a specific provision regarding a
plaintiff’s right to record the exam; that provision generally
allows such recording, by either “audio or video,” “unless the
party requesting the examination shows that the recording would
unduly interfere with the examination.” Id.

¶9 The Labor Commission has enacted an administrative rule
that, at least in part, governs medical examinations requested by
employers or their insurers. That rule differs from rule 35 in that
it allows employers, at their option, to “require the petitioner to
submit to a medical examination by a physician of the
[employer’s] choice” and allows petitioners to be relieved from
the requirement only if they can show that the employer’s
demand was unreasonable. See Utah Admin. Code R602-2-1(F)(3).
But the administrative rule is silent on the subject of whether a
petitioner may make an audio or video recording of the medical
exam.

¶10 Burrell argues that the administrative rule entirely
supersedes rule 35 by allowing an employer to require a claimant
to submit to an insurer’s exam and asserts that the administrative
rule’s silence regarding a claimant’s right to record the exam

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indicates that such recording is not allowed. Barker, on the other
hand, asserts that the administrative rule modifies rule 35 only
insofar as it gives the respondent the right to demand an exam
without showing good cause, as would be required under rule 35.
In particular, Barker maintains that because the administrative
rule does not include its own provision pertaining to the
recording of insurer exams, the recording portion of rule 35 steps
into the breach and supplies the relevant rule.

¶11 We agree with Barker that the administrative rule’s silence
on the matter of whether a claimant may record an exam means
that it does not supersede rule 35 on that point. As a general rule,
a statute’s or rule’s silence on a subject does not constitute a
conflict with another statute or rule that does address that subject.
For example, in Salt Lake City v. Newman, 2006 UT 69, 148 P.3d 931,
our supreme court considered whether a city ordinance conflicted
with state law in such a way as to make the ordinance invalid. Id.
¶ 7. See generally Hansen v. Eyre, 2005 UT 29, ¶ 15, 116 P.3d 290 (“It
is well established that, where a city ordinance is in conflict with
a state statute, the ordinance is invalid at its inception.”). The
court explained that “the test” for whether a city ordinance
conflicts with a state statute “is whether the ordinance permits or
licenses that which the statute forbids and prohibits, and vice
versa,” Newman, 2006 UT 69, ¶ 7 (quotation simplified), and the
court rejected the assertion that an “implied conflict” could exist
where a city ordinance prohibited conduct that would not be
prohibited under state law, id. ¶ 8; accord Redwood Gym v. Salt Lake
County Comm’n, 624 P.2d 1138, 1144 (Utah 1981) (explaining that
a conflict between a statute and an ordinance “is not created by
the fact that an ordinance denounces as unlawful an act upon
which state law is silent, or pronounces a penalty therefor”); see
also Reedeker v. Salisbury, 952 P.2d 577, 585 (Utah Ct. App. 1998)
(rejecting the assertion that the applicability of the Condominium
Act to condominium associations precluded provisions of the
Nonprofit Corporation and Co-Operative Association Act from
applying with respect to matters on which the Condominium Act
was silent). Similarly, in McNair v. State, 2014 UT App 127, 328
P.3d 874, a panel of this court held that rule 65C of the Utah Rules

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of Civil Procedure, which governs post-conviction petitions, does
not supersede other provisions of the rules with respect to matters
on which it is silent. Id. ¶¶ 10–11. While these cases are not
precisely on point, they support the general principle that a rule
or statute does not preempt another applicable rule or statute
unless it does so explicitly.

¶12 Here, the Administrative Procedures Act and the Labor
Commission’s own rules indicate that the Utah Rules of Civil
Procedure are applicable to discovery issues in formal
adjudicative proceedings unless they conflict with other
applicable rules. And there is no explicit conflict between rule 35’s
recording provision and the administrative rules because the
administrative rules are silent about the claimant’s right to record
an insurer’s exam. Thus, rule 35 applies, and the ALJ erred in
ordering Barker to undergo the insurer’s exam without recording.

II. Apportionment

¶13 Barker next argues that the Board erred in apportioning
benefits among causes of his disease rather than causes of his
disability. We agree.

A. Burden of Proof

¶14 As a threshold matter, the parties disagree as to who bears
the burden of demonstrating that apportionment is appropriate.
Burrell maintains that it is the employee’s burden to prove that
the apportionment statute does not apply, whereas Barker asserts
that the onus is on the employer, as the proponent of
apportionment, to demonstrate that apportionment is
appropriate.

¶15 Employees bear the initial burden of proving their
entitlement to permanent disability benefits. See Utah Code § 34A-
2-413(1)(b). For purposes of the Occupational Disease Act, “a
compensable occupational disease means any disease or illness
that arises out of and in the course of employment and is

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medically caused or aggravated by that employment.” Id. § 34A-
3-103. There is no dispute that Barker has met his burden to
establish that he has a compensable occupational disease and is
entitled to permanent total disability benefits. Indeed, Burrell
agrees with Barker that Barker’s work activities “medically
caused or aggravated” Barker’s COPD.

¶16 The Occupational Disease Act does not identify which
party should bear the burden of proof when it comes to
apportionment of benefits. See id. § 34A-3-110. However, we are
convinced it is most reasonable to place that burden on the
employer, as the proponent of the reduction. Other states with
similar statutes have assigned the burden of proof to the employer
for several reasons. First, apportionment is “an exception to the
general rule of compensability,” so once an employee has
established entitlement to compensability, it should be the
employer’s burden to demonstrate that an exception applies. See
Cowin & Co. v. Medina, 860 P.2d 535, 537–38 (Colo. App. 1992).
Second, the employer should bear the burden of proof because it
is the party that will benefit from a finding of apportionment. See
Deschenes v. Transco, Inc., 953 A.2d 13, 25 n.18 (Conn. 2008); see also
Cowin, 860 P.2d at 538 (explaining that if an employee has
established entitlement to compensation and there was no
evidence of a non-occupational disease, then the default position
would be no apportionment; the employer must therefore show
the existence of a non-industrial disease for apportionment to be
considered); cf. Koesling v. Basamakis, 539 P.2d 1043, 1046 (Utah
1975) (explaining that the “proponent of a proposition” generally
has the burden of production and persuasion). Third,
apportionment is comparable to the tort concept of comparative
negligence, on which the defendant carries the burden of proof.
See Cowin, 860 P.2d at 538–39. See generally 65A C.J.S. Negligence
§ 790 (March 2023 update) (“Comparative negligence is an
affirmative defense, and the party asserting the defense bears the
burden of proving that the negligence of the other party was a
cause in fact of the accident.”). And finally, public policy supports
placing the burden of proof on the employer: issues of
apportionment can be unusually complicated because of the

20220242-CA 7 2023 UT App 31
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difficulty in attributing and apportioning disability among
various causes, so it should be “the employer whose working
conditions have admittedly caused harm to the employee” who
should bear the burden of “medical imprecision” inherent in the
apportionment analysis. See Cowin, 860 P.2d at 538; cf. Walls v.
Hodo Chevrolet Co., 302 So. 2d 862, 865–66 (Miss. 1974) (concluding
that it was appropriate to place the burden on the employer to not
only prove the existence of a pre-existing condition for purposes
of apportionment but to present medical evidence that the pre-
existing disease contributed to the employee’s disability). For all
these reasons, we agree with Barker that his employer bore the
burden of demonstrating that apportionment was appropriate.

B. The Apportionment Statute

¶17 The apportionment statute provides,

The compensation payable under this chapter
shall be reduced and limited to the proportion of
the compensation that would be payable if the
occupational disease were the sole cause of
disability or death, as the occupational disease as
a causative factor bears to all the causes of the
disability or death when the occupational
disease, or any part of the disease:

(1) is causally related to employment with a non-
Utah employer not subject to commission
jurisdiction;

(2) is of a character to which the employee may
have had substantial exposure outside of
employment or to which the general public is
commonly exposed;

(3) is aggravated by any other disease or
infirmity not itself compensable; or

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(4) when disability or death from any other
cause not itself compensable is aggravated,
prolonged, accelerated, or in any way
contributed to by an occupational disease.

Utah Code § 34A-3-110.2 Burrell did not identify in its argument
before the Labor Commission which subsection or subsections it
believed to be applicable in this case, and neither the ALJ’s
decision nor the Board’s decision relied on any particular
subsection. And even on appeal, Burrell has not articulated a
specific theory under which it believes apportionment should be
based. We therefore examine each of the four subsections of the
apportionment statute to determine which, if any of them, might
justify apportionment under the facts of this case.

¶18 “When interpreting statutes, we look first to the statute’s
plain language with the primary objective of giving effect to the

2. The apportionment statute is by no means a model of clarity.
As we read them, the statute’s initial few lines appear to be a
loquacious way of saying that the principle of apportionment
applies in any of the four circumstances outlined in subsections
(1) through (4). In reviewing the phrase immediately preceding
those subsections—“when the occupational disease, or any part
of the disease”—we would typically expect to read that phrase as
modifying all four subsections. However, the four subsections are
not grammatically parallel. While the language of the first three
subsections naturally follows from that phrase, the language of
the fourth subsection stands apart. In fact, were we to read the
phrase as modifying subsection (4), the resulting phrase would be
nonsensical. The only way for the statute to make sense is if we
apply the “when” phrase that precedes the list (“when the
occupational disease, or any part of the disease”) only to the first
three items in the list and the second “when” phrase, beginning
in subsection (4) (“when disability . . . from any other cause not
itself compensable”), as modifying that subsection in place of the
earlier “when” phrase. See infra ¶¶ 21–23.

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legislature’s intent.” Martinez v. Media-Paymaster Plus/Church of
Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 46, 164 P.3d 384. “We
also construe workers’ compensation statutes liberally in favor of
finding employee coverage.” Vigos v. Mountainland Builders, Inc.,
2000 UT 2, ¶ 13, 993 P.2d 207 (quotation simplified); see also Luckau
v. Board of Review, 840 P.2d 811, 815 (Utah Ct. App. 1992), cert.
denied, 853 P.2d 897 (Utah 1993).

¶19 Barker asserts that the apportionment statute applies only
where there are multiple diseases leading to a single disability, but
not where there are multiple causes of a single disease. In making
this argument, he relies persuasively on authority from other
jurisdictions, as well as on Larson’s Workers’ Compensation Law
treatise. These authorities have construed similar apportionment
statutes as not “requiring apportionment where a disease
producing a single disability is caused by both occupational and
nonoccupational factors,” Burton v. Rockwell Int’l, 967 P.2d 290, 295
(Kan. 1998), explaining that the statutes “require[] apportionment
of disabilities, not apportionment of the different causes of a single
disability,” see Fry’s Food Stores of Arizona v. Industrial Comm’n, 866
P.2d 1350, 1354 (Ariz. 1994). See also Deschenes, 953 A.2d at 26
(“[A]pportionment or reduction of permanent partial disability
benefits is appropriate only in those cases wherein different
diseases, one of which is occupational in nature, have combined
to cause, in effect, two different disabilities, even if they ultimately
affect the same bodily part or function.”); Kingery v. Ford Motor
Co., 323 N.W.2d 318, 323 (Mich. Ct. App. 1982) (per curiam)
(quoting with approval the workers’ compensation appeals
board’s explanation that an employee’s disability is “fully
compensable” where “multiple exposures or causes, some
compensable and others not compensable . . . , work together to
cause a disease . . . , and that disease results in a disability”). In
reviewing such cases from across the country, the Larson treatise
concludes that—among those few states, including Utah, that
employ apportionment in dual-causation cases—the “crucial
distinction . . . is between apportioning disability and
apportioning cause. The former is possible in the minority of
states having apportionment statutes; the latter is never possible.”

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Barker v. Labor Commission

4 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation
Law § 52.06[4][d] (2014).3

¶20 While we find the reasoning of these authorities to be
persuasive, we are ultimately bound by the language of Utah’s
apportionment statute. Considering that language, we agree with
Barker that subsections (3) and (4)—which are similar to the
statutes examined in the cited cases—apply only in the face of
multiple causes of a disability. On the other hand, the language of
subsections (1) and (2)—which subsections appear to be unique to
Utah—indicate that those subsections can apply to multiple
causes of a disease. Nevertheless, as we ultimately conclude that
subsections (1) and (2) do not apply under the facts of this case,
we agree with Barker that the Board erred in apportioning his
compensation.

¶21 Subsection (1), by its plain language, unambiguously
allows for apportionment where “employment with a non-Utah
employer” causes “the occupational disease, or any part of the
disease.” See Utah Code § 34A-3-110(1) (emphasis added). Thus, if
any part of a single disease is caused by a non-Utah employer,
apportionment is appropriate. However, this subsection is clearly
inapplicable to the case at hand, as Barker never worked for a non-
Utah employer.

¶22 Subsection (2) allows for apportionment where “the
occupational disease, or any part of the disease . . . is of a character

3. We observe that workers’ compensation law in Utah has been
developed, to no small degree, in reliance on the Larson treatise.
Our supreme court has cited the treatise numerous times and
adopted many principles directly from the treatise, including the
“two-part causation test,” see Allen v. Industrial Comm’n, 729 P.2d
15, 25 (Utah 1986), the four-part test for determining whether an
injury incurs in the scope of employment, see Black v. McDonald’s
of Layton, 733 P.2d 154, 156–57 (Utah 1987), and the “direct and
natural result causal test,” see Washington County School Dist. v.
Labor Comm’n, 2015 UT 78, ¶¶ 28–29, 358 P.3d 1091, to name a few.

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to which the employee may have had substantial exposure
outside of employment or to which the general public is
commonly exposed.” Id. § 34A-3-110(2) (emphasis added). Like
subsection (1), subsection (2) speaks in terms of a single disease
and therefore conceivably allows apportionment among multiple
causes of a single disease. However, only diseases of a particular
“character” fall under this category. Burrell suggests that if a
potential cause of a disease is such that “the employee may have
had substantial exposure outside of employment or to which the
general public is commonly exposed,” see id., then the disease
must be considered under subsection (2). Here, Burrell argues that
smoking and secondhand smoke meet this requirement and that
apportionment of Barker’s benefits is therefore appropriate under
this subsection. But subsection (2) does not speak in terms of the
causes of a disease. Instead, it speaks in terms of the character of
the disease. We therefore read this subsection as requiring that the
disease itself, rather than merely its potential causes, be one to
which the person has substantial exposure outside their
employment or to which the public is commonly exposed. An
example of this would be a communicable disease, such as
COVID-19. While it is conceivable that the legislature may have
intended for subsection (2) to have broader applicability, the
language chosen does not reflect such an intent. Moreover,
reading this language narrowly comports with our directive to
“construe workers’ compensation statutes liberally in favor of
finding employee coverage.” See Vigos, 2000 UT 2, ¶ 13 (quotation
simplified). As COPD with emphysema is not a disease “of a
character” that the general public encounters, subsection (2) is not
applicable under the facts of this case. See Utah Code § 34A-3-
110(2).

¶23 While the language of subsections (1) and (2) contemplate
apportionment in the face of only a single disease with multiple
causes, we agree with Barker that subsections (3) and (4) apply
only where a worker suffers from multiple diseases that both
cause disability and that these subsections do not apply where a
worker suffers from only one disease that causes disability (which
disease may, in turn, have multiple causes). Subsection (3) applies

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“when the occupational disease, or any part of the disease . . . is
aggravated by any other disease or infirmity not itself
compensable.” Id. § 34A-3-110(3). Thus, to apportion benefits
under subsection (3), the claimant must be the victim of at least
two diseases. Subsection (4) applies “when disability . . . from any
other cause not itself compensable is aggravated, prolonged,
accelerated, or in any way contributed to by an occupational
disease.” Id. § 34A-3-110(4). Thus, to apportion benefits under
subsection (4), the claimant’s disability—as distinct from the
occupational disease—must have more than one cause.

¶24 Here, Barker’s disability is caused by only one disease:
COPD with emphysema. There is no evidence that this disease
was aggravated by any other disease or that any other disease
contributed to Barker’s disability. Accordingly, apportionment
was not appropriate under either subsection (3) or subsection (4)
of the apportionment statute.

CONCLUSION

¶25 Because administrative rules do not contradict the
language of rule 35 of the Utah Rules of Civil Procedure that
grants a right to record a medical exam, Barker should have been
permitted to record the insurer’s exam. Moreover, because
Barker’s disability was caused by only a single disease, and
because the first two subsections of the apportionment statute are
not factually applicable, apportionment was inappropriate here.
We therefore set aside the Board’s decision and remand with
instructions that the Board award Barker his full permanent total
disability benefits.

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