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Clean Harbors Environmental Services v. Labor Commission

Court of Appeals of Utah

April 4, 2019

Clean Harbors Environmental Services and American Zurich Insurance Co., Petitioners,
Labor Commission and David Fox, Respondents.

          Original Proceeding in this Court

          Mark D. Dean and Kristy L. Bertelsen, Attorneys for Petitioners

          Scott F. Squire, Attorney for Respondent David Fox

          Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.

          HARRIS, JUDGE

         ¶1 In administrative proceedings before the Labor Commission of Utah (the Commission), David Fox was awarded permanent total disability benefits due to a workplace injury. His employer, Clean Harbors Environmental Services (Clean Harbors), and its insurer, American Zurich Insurance Company, seek judicial review of the Commission's decision, and specifically challenge its refusal to exclude certain medical evidence. We conclude that the Commission did not abuse its discretion in considering the applicable medical evidence, and we therefore decline to disturb the Commission's ultimate decision to award benefits to Fox.


         ¶2 One day in August 2012, Fox's duties as an employee of Clean Harbors required him to clean hazardous material out of a large tank using a high-pressure hose. Even though Fox was dressed in a "haz-mat" suit and was wearing three pairs of gloves, he injured his right hand when he inadvertently turned on the hose while his hand was in front of the nozzle. The water, pressurized to 3, 500 pounds per square inch, blasted into the palm of Fox's hand and base of his wrist. Fox was immediately taken to the hospital where a doctor (Doctor 1) performed surgery on him that night.

         ¶3 After surgery, Fox began physical therapy but, despite some improvement, over the next few months he continued to experience pain, numbness, and hypersensitivity to temperature in his hand, which prevented him from returning to work. In January 2014, Doctor 1 performed a second surgery on Fox, this time for carpal tunnel release, neuroma removal, and radial nerve repair. A few weeks later, at a post-operative follow-up appointment, Doctor 1 observed that Fox had "pain radiating up into the axilla, cold intolerance and swelling with increased hairiness," and eventually diagnosed Fox with Complex Regional Pain Syndrome (CRPS). Fox sought a second opinion from another doctor (Doctor 2), who also diagnosed Fox with CRPS, and opined that Fox's "CRPS is an extremely straightforward and classic example of CRPS-as straightforward of a case as [she had] ever seen." A few months later, Fox began treatment with yet another doctor (Doctor 3), who in September 2014 also diagnosed Fox with CRPS.

         ¶4 In an effort to ameliorate Fox's symptoms, Doctor 2 referred him to physical and occupational therapy, which he attended. In addition, Doctor 2 implanted a spinal cord stimulator into Fox's back in an attempt to help alleviate some of his pain. Although the implant was initially successful, after a number of months it became infected and had to be removed and eventually re-implanted.

         ¶5 Over a year later, in December 2015, Clean Harbors sent Fox to a fourth doctor (Doctor 4). Although Doctor 4 concluded that, based on his injury, Fox qualified for either a partial upper-extremity or whole-person impairment rating, Doctor 4 also concluded that Fox did not have CRPS. In making her diagnosis, Doctor 4 relied upon the American Medical Association Guides, 5th Edition (the 2000 AMA Guides), a 2000 publication that contains standards for, among other things, the diagnosis of CRPS. Pursuant to those standards, an individual can be clinically diagnosed with CRPS only if he or she exhibits at least eight out of eleven specific objective symptoms, and Doctor 4 concluded that Fox exhibited only three of these symptoms.

         ¶6 In March 2016, Fox filed a permanent-total-disability claim for workers' compensation benefits, asserting that he had sustained injuries to his right hand while working for Clean Harbors. The matter proceeded to an evidentiary hearing before an administrative law judge (ALJ), and at that hearing both parties agreed that Fox's hand had been injured in the workplace accident, but they disagreed about the current condition of Fox's hand, specifically about his diagnosis of CRPS. In support of his claim, Fox submitted the medical opinions of Doctor 1, Doctor 2, and Doctor 3, all of whom had diagnosed him with CRPS. Conversely, Clean Harbors submitted Doctor 4's medical opinion that Fox did not have CRPS. After the hearing, the ALJ determined, among other things, that there was "a medical controversy regarding medical causation, functional restrictions, date of medical stability and recommended medical care," and ordered that these issues be referred to an impartial two-person medical panel (Panel) for consideration.

         ¶7 The Panel was comprised of two medical doctors, one a specialist in occupational medicine and the other a specialist in pain management. After some legal wrangling that required the Panel to issue an amended report, it ultimately concluded that Fox has CRPS. To reach that diagnosis, the Panel did not use the 2000 AMA Guides or Utah's 2006 Impairment Guides (the 2006 Utah Guides), which refer to the 2000 AMA Guides; instead, the Panel used the more recent "Budapest Criteria" established by the International Association for the Study of Pain, which the ALJ found were "the most widely accepted diagnostic criteria among pain specialists." Under those criteria, an individual has CRPS if they exhibit symptoms in three out of four categories, and the Panel concluded that Fox's symptoms met those criteria. It stated that both the available medical records and its examination of Fox "strongly support[] the diagnosis of CRPS." The Panel concluded that Fox's condition-CRPS-was medically caused by the workplace accident.

         ¶8 Soon after the Panel issued its final report, Clean Harbors filed an objection, arguing that the ALJ should not adopt the report because the Panel did not use the diagnostic criteria found in the 2000 AMA Guides or the 2006 Utah Guides, which Clean Harbors maintained was required by a state regulatory provision contained in rule R612-300-9(A) of the Utah Administrative Code (the Rule). The ALJ rejected this argument, and concluded that the Rule required use of the 2000 AMA Guides only when "assessing an individual's impairment rating," something that was not at issue in this case. After refusing to exclude the Panel's report, the ALJ ultimately concluded that, "[b]ased upon a preponderance of the evidence," which evidence included not only the Panel's report but also the opinions ...

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