Full Opinion (html_with_citations)
2022 UT App 138



               THE UTAH COURT OF APPEALS

                    RIVERS MITCHELL,
                       Petitioner,
                            v.
  LABOR COMMISSION, FTA TRANSPORT LLC, AND BENCHMARK
                     INSURANCE CO.,
                      Respondents.

                           Opinion
                       No. 20210704-CA
                    Filed December 8, 2022

               Original Proceeding in this Court

           Jared L. Mortenson, Attorney for Petitioner
        Chad P. Curtis and Mark D. Dean, Attorneys for
        Respondents FTA Transport LLC and Benchmark
                         Insurance Co.

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
                        concurred.

MORTENSEN, Judge:

¶1     Rivers Mitchell sought workers’ compensation benefits
after injuring his knee while delivering packages. At a certain
point in the proceedings, the Labor Commission (Commission)
rejected Mitchell’s objection that one of the medical panel
members was not impartial, determining that Mitchell had not
shown “actual bias.” Because the Commission applied the wrong
standard in this respect, we set aside the Commission’s decision
on this issue and instruct the Commission to revisit the matter.
                   Mitchell v. Labor Commission


                        BACKGROUND 1

¶2     Mitchell worked for FTA Transport LLC, whose workers’
compensation carrier is Benchmark Insurance Co. (collectively,
FTA). While delivering a package in January 2019, Mitchell
slipped on ice and twisted his right knee while falling to the
ground.

¶3      Mitchell received treatment for injuries related to his fall
and was first diagnosed with a right knee sprain. Later, a
physician (Dr. Novak) diagnosed Mitchell with a meniscal tear—
based on an MRI—and recommended surgery to address it. The
surgery revealed no tear, but Dr. Novak found patellofemoral
arthritis and “a flap[,] as well as what appeared to be a striation
within the cartilage.” He also noted that “[t]his all appeared to be
a relatively acute change of the cartilage.” Dr. Novak “used a
shaver to debride the cartilage lesion back to a stable base.”
Following surgery, Mitchell developed a significant blister on the
knee, which was treated.

¶4      At the request of FTA, another doctor (Dr. Mattingly)
evaluated Mitchell in June 2019. This doctor determined that
Mitchell suffered a “[r]ight knee strain with temporary
aggravation of [his] preexisting patellofemoral arthritis” due to
the fall and that Mitchell had reached medical stability as of June
20, 2019. While Mitchell complained of ongoing knee problems,
Dr. Mattingly opined that these complaints were unrelated to the
accident and entirely due to Mitchell’s preexisting patellofemoral
arthritis, noting, “No further treatment is warranted with respect
to the work incident of January 12, 2019. While . . . Mitchell may
benefit from further workup and treatment, such as an MR



1. Owing to the manner in which we resolve this review of the
Commission’s order, we limit our recitation of the facts to the
relevant matters.


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                   Mitchell v. Labor Commission


arthrogram of the right knee, this would be necessitated by pre-
existing conditions and not the industrial injury.”

¶5     Mitchell then sought an opinion from yet another doctor
(Dr. Murray). Relying on the previous MRI, Dr. Murray
diagnosed Mitchell with degenerative joint disease and a meniscal
tear. Apparently unaware of the nature of the previous surgery,
Dr. Murray recommended right knee arthroscopy to repair the
tear, a partial meniscectomy, and debridement for arthritis.
Because Mitchell had already received this surgery, FTA declined
to repeat it and discontinued further workers’ compensation
benefits.

¶6     Mitchell challenged this decision by applying for a hearing
in July 2019. The administrative law judge (ALJ) referred the
matter to a medical panel “to conduct an impartial evaluation of
the medical aspects of [the] case.” The medical panel, which
consisted of Dr. Sean Biggs and Dr. Don Schmidt, issued its first
report on May 6, 2020, concluding that the “industrial accident
most likely caused an acute exacerbation of his pre-existing
patellofemoral degenerative condition,” that Mitchell reached
medical stability by June 27, 2019, and that Mitchell’s “current
pain complaints in the right knee are most likely not related to the
work injury . . . [but] are most likely a result of his pre-existing
patellofemoral degenerative condition.”

¶7     Mitchell filed an objection to the medical panel report,
disputing the panel’s “conclusions that [his] condition [was] an
exacerbation of a chronic condition” and that the work-related
injury had resolved. The ALJ remanded the matter back to the
panel, asking for a fuller explanation of how the panel had
reached its medical stability conclusion. The panel returned a
supplemental report addressing the inquiry, to which Mitchell
reasserted his objections. The ALJ overruled Mitchell’s renewed
objections and issued findings of fact, conclusions of law, and an
order in FTA’s favor in September 2020.



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                   Mitchell v. Labor Commission


¶8     Mitchell then sought review of the ALJ’s order before the
Commission. Among the arguments Mitchell raised was that the
panel’s opinions resulted from bias. Specifically, Mitchell alleged
that Dr. Biggs was biased because he is “an occupational medicine
doctor at a clinic whose mission statement is to ‘reduce your
insurance and lost labor costs and save your company money.’”
(Cleaned up.) Mitchell argued that this “objective runs directly
counter to the purpose of a medical panel in an injured worker’s
case” and that it was “entirely inappropriate for a doctor with
such a biased objective to serve on a medical panel.”

¶9     The Commission remanded a portion of the ALJ’s order for
“a more complete explanation from the medical panel regarding
the date [Mitchell] reached medical stability from his work
injuries and why it identified such date based on the specific
evidence in the record.”

¶10 Critical for our analysis, the Commission rejected—along
with the remainder of Mitchell’s complaints—his argument that
the panel was biased. Specifically, the Commission stated,

      As a preliminary matter, the [Commission] rejects
      [Mitchell’s] assertion as speculative that Dr. Biggs
      was biased against him and in favor of FTA in this
      case. [Mitchell] refers to the mission statement at the
      clinic where Dr. Biggs practices as indicative of bias
      in favor of employer and against injured workers.
      The statement provides that the clinic aims to
      “reduce your insurance and lost labor costs and save
      your company money.” The [Commission] does not
      agree with [Mitchell] that such statement evinces a
      bias in favor of employers, as proper and prompt
      medical treatment for injured workers—honorable
      goals for any medical provider—would reduce
      insurance and lost labor costs. Even if the clinic’s
      mission statement could be construed as pro-



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       employer, there is no indication beyond [Mitchell’s]
       speculation that Dr. Biggs himself favors employers
       over injured workers and no evidence of actual bias
       in this case. Dr. Biggs has served on many medical
       panels over several years and has not demonstrated
       any pattern of bias for or against a particular side.

(Emphasis added.)

¶11 Pursuant to the Commission’s order, the ALJ remanded the
matter back to the panel for additional explanation regarding the
date of medical stability. Mitchell objected, saying that the panel
had already answered this question. And he reasserted his
argument that Dr. Biggs was biased, stating that “[i]njured
workers are entitled to complete, fair, and legitimate review of
their cases.”

¶12 After receiving the panel’s second supplement to its report,
Mitchell “reassert[ed] his continuing objection to the appointment
of Dr. Biggs to this or any medical panel on the grounds of the
repeated inadequacy of his reviews and his clear historical bias
and conflicting interest.” Mitchell also pointed to Dr. Biggs’s
“extensive work history for employers, the mission statement of
his associated clinic,” and that clinic’s receipt of “considerable
donations from at least one workers compensation carrier” as
evidence of bias.

¶13 The ALJ issued its second findings of fact, conclusions of
law, and order. In doing so, the ALJ rejected Mitchell’s objections.
As relevant here, the ALJ recognized that the Commission “found
no evidence of actual bias in this case,” making Mitchell’s
renewed objection in this respect “not an issue” for the ALJ. The
ALJ ordered that Mitchell receive the remainder of his temporary
partial disability benefits accrued before June 2019 but dismissed
with prejudice his other claims.




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                   Mitchell v. Labor Commission


¶14 Mitchell again sought the Commission’s review of the
ALJ’s order. Once again, Mitchell asserted, among other
complaints, his allegation of bias. In August 2021, the
Commission upheld the ALJ’s order, specifically noting that
Mitchell’s “allegation of bias against the medical panel” had
“already been addressed . . . in its prior decision.” Mitchell now
seeks judicial review of the Commission’s decision.


             ISSUE AND STANDARD OF REVIEW

¶15 We consider on review whether the medical panel’s report
should have been admitted given Mitchell’s allegation that Dr.
Biggs was not impartial. “A challenge to an administrative
agency’s findings of fact is reviewed for substantial evidence. We
review the law applied to those facts for correctness.” Gamez v.
Utah Labor Comm’n,
2022 UT 20, ¶ 23
,
511 P.3d 1145
 (cleaned up). 2


                           ANALYSIS

¶16 There is no question that the Commission rejected
Mitchell’s claim of bias on the basis that there was no indication
of “actual bias” on the part of Dr. Biggs. As our supreme court has


2. Mitchell also asserts that the Commission erred in (1) adopting
the medical panel’s diagnosis that the accident only aggravated a
pre-existing condition, (2) adopting the medical panel’s opinion
that Mitchell had reached maximum medical improvement in
June 2019, (3) terminating his compensation when his condition
was worsened by the surgery, and (4) terminating his
compensation before he returned to his pre-injury baseline.
Because these issues depend on the Commission’s use of the
medical panel’s report, we are unable to address them—indeed, it
would be pointless to do so—until the threshold question of bias
is properly resolved by the Commission.


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recently clarified, “the heightened ‘actual bias’ standard does not
comport with the Workers’ Compensation Act.” Gamez v. Utah
Labor Comm’n,
2022 UT 20, ¶ 25
,
511 P.3d 1145
. Rather, the
standard is whether “a medical panelist’s impartiality could
reasonably be questioned.” See id. ¶ 50. And “where a medical
panelist’s impartiality could reasonably be questioned, the
statutory requirement for an impartial medical evaluation has not
been met.” Id. ¶ 25.

¶17 The Utah Code provides that “the medical aspects” of a
workers’ compensation case may be referred “to a medical panel
appointed by an administrative law judge.” See Utah Code Ann.
§ 34A-2-601(1)(a) (LexisNexis Supp. 2022). In interpreting this
statute, our supreme court observed that section 601 “does not
explicitly require that the members of a medical panel be
impartial.” Gamez,
2022 UT 20, ¶ 38
. However,

       [w]hile there is no direct language in section 601
       establishing such a requirement, it can be inferred
       from the use of “impartial” in subsection 601(1)(d),[3]
       which grants the adjudication division the authority
       to “employ a medical director or one or more
       medical consultants” as “an alternative method of
       obtaining an impartial medical evaluation of the
       medical aspects of a controverted case” if certain
       conditions are met.

Id. ¶ 39.




3. Around the same time Gamez v. Utah Labor Commission,
2022 UT 20
,
511 P.3d 1145
, was issued, subsection 601(1)(d) was
redesignated as subsection 601(1)(e). Compare Utah Code Ann.
§ 34A-2-601(1)(d) (LexisNexis 2019), with id. § 34A-2-601(1)(e)
(Supp. 2022).


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                   Mitchell v. Labor Commission


¶18 In reaching this conclusion, the court noted that the
Commission had “routinely” rejected “claims of bias or conflict of
interest against physicians serving on medical panels . . . by
finding [that] a potential for bias [is] ‘insufficient grounds for
disqualification,’ and holding that parties must offer evidence of
‘actual bias’ to successfully challenge a medical panel
appointment.” See id. ¶ 42. In spite of the Commission’s routine
use of the “actual bias” standard, the court explicitly rejected the
approach. See id. ¶ 25.

¶19    Our supreme court held that

       imputing an actual bias standard to the statutory
       text overlooks a key component of the plain
       meaning of impartial. . . . To assess whether an
       individual is impartial, one must also assess
       whether they are disinterested—in other words,
       whether they are free from a conflict of interest. And
       a conflict of interest includes both a real or seeming
       incompatibility between one’s private interests and
       one’s public or fiduciary duties.

Id. ¶¶ 47–48 (cleaned up).

¶20 Consequently, the court disavowed the “actual bias”
standard and adopted the following standard for assessing bias:

       [I]n keeping with the statute, all physicians
       appointed to medical panels must be “impartial” in
       order to provide an “impartial medical evaluation.”
       And recognizing the scope of the term “impartial,”
       we hold that where a medical panelist’s impartiality
       could reasonably be questioned, the statutory
       requirement for an impartial medical evaluation has
       not been met.




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Id. ¶ 50. Given this newly promulgated standard, the Commission
clearly erred in applying the “actual bias” standard to Mitchell’s
claim against the impartiality of the medical panel.

¶21 Because our supreme court has “clarified the standard for
evaluating an objection to a medical panelist based on an alleged
conflict of interest,” we set aside the Commission’s decision
rejecting Mitchell’s claim of bias and instruct the Commission “to
consider [Mitchell’s] objection under this clarified standard.” See
id. ¶ 53. We acknowledge, and FTA conceded at the oral
argument, that should the Commission determine that the
medical panel included a physician whose impartiality could
reasonably be questioned, a new medical panel may need to be
appointed and the entirety of the proceedings revisited.


                         CONCLUSION

¶22 We set aside the Commission’s decision rejecting Mitchell’s
claim of bias and instruct the Commission to consider Mitchell’s
claim of bias under the newly articulated standard set forth in
Gamez. See id. ¶ 50.




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