2018 UT App 124

THE UTAH COURT OF APPEALS

TIMOTHY FOYE,

Petitioner,

v.

LABOR COMMISSION, KODIAK FRESH PRODUCE,

AND EMPLOYERS ASSURANCE COMPANY,

Respondents.

Opinion

No. 20161039-CA

Filed June 21, 2018

Original Proceeding in this Court

Aaron J. Prisbrey and Trevor C. Sanders, Attorneys

for Petitioner

Ford G. Scalley and Alisha M. Giles, Attorneys

for Respondents Kodiak Fresh Produce and 

Employers Assurance Company

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.

POHLMAN, Judge:

¶1 Timothy Foye asks us to review the Labor Commission’s 

decision denying his claim for benefits under Utah’s Workers’ 

Compensation Act. He alleges several errors related to the 

Commission’s Appeals Board’s (the Board) ultimate denial of 

benefits. In particular he argues that the Board exceeded its 

discretion when it overruled his objection to the medical 

panelists’ qualifications to render a medical opinion in his case. 

He also contends that the Commission’s rule R602-2-1(F)(3), 

which permits a respondent to require an employee to submit to 

a medical examination with the physician of the respondent’s 

choice, constitutes an unconstitutional delegation of legislative 

authority to a respondent. On that basis, he contends that neither 
Foye v. Labor Commission

20161039-CA 2 2018 UT App 124

the medical panel nor the Board can rely upon his employer’s 

physicians’ reports to dismiss his claim. Because we agree with 

Foye that the Board exceeded its discretion in overruling his 

objection regarding the medical panelists’ qualifications, we set 

aside the Board’s decision, with instructions to appoint a new 

medical panel to evaluate the issue of medical causation. 

However, we approve the Board’s decision that rule 

R602-2-1(F)(3) does not constitute an unconstitutional delegation 

of authority.

BACKGROUND

¶2 In May 2014, Foye sought compensation benefits related 

to a work accident that occurred in October 2013 while he was 

employed with Kodiak Fresh Produce (Kodiak) as a commercial 

truck driver. He alleged that he was exposed to “high levels of 

carbon monoxide” due to a carbon monoxide leak from his 

truck’s engine while he sat in the truck’s cab for approximately 

four hours, waiting for a blizzard to pass. He claimed that as a 

result of the carbon monoxide exposure, he sustained permanent 

brain damage, resulting in “headaches, balance, vision & hearing 

problems, depression, anxiety, [and] problems concentrating.”

¶3 A number of Foye’s treating physicians diagnosed him

with carbon monoxide poisoning. One of his physicians, an 

expert in hyperbaric medicine, opined that Foye suffered brain 

damage from the carbon monoxide exposure and predicted that 

the effects of the exposure “will affect him his entire life.” 

Another of his treating physicians, however, opined that it was 

unlikely the exposure caused his symptoms and that Foye 

needed to see a psychiatrist to resolve his symptoms.

¶4 During the course of the proceedings, Kodiak required 

Foye to submit to two examinations with physicians it chose. 

One of the physicians, a neurologist, believed that Foye’s 

presentation was within the neuropsychological, not the 

neurological, realm of medicine; the other physician, a 

neuropsychologist, opined that the exposure was not “a 
Foye v. Labor Commission

20161039-CA 3 2018 UT App 124

probable cause or contribution” to the neuropsychological 

complaints Foye presented.

¶5 After an evidentiary hearing, the Administrative Law 

Judge (the ALJ) determined that there were “conflicting medical 

opinions as to whether [Foye’s] current condition . . . [was] 

causally related to his work accident.” The ALJ therefore 

referred Foye’s case to a medical panel. In her findings, the ALJ 

specifically identified the conditions involved in the claim: 

carbon monoxide poisoning, and/or Foye’s potentially 

preexisting condition, which “may be pseudo-dementia.” She 

requested the panel to, among other things, opine on whether 

Foye had a preexisting condition and, if so, whether the 

industrial accident aggravated, accelerated, or made 

symptomatic that preexisting condition.

¶6 The ALJ appointed Dr. Biggs, a board certified family 

medicine physician with experience in occupational medicine,1

as the medical panel chair, noting in her charging letter that 

Dr. Biggs had been “specifically chosen because of [his] 

experience on CO poisoning cases.” The ALJ instructed Dr. Biggs 

to “select the specialists [he] deem[ed] appropriate” to assist in 

the evaluation. Dr. Biggs chose Dr. Watkins, a board certified 

neurologist, to be the second physician on the medical panel.

¶7 The medical panel reviewed Foye’s medical records and, 

in its report, extensively recited his medical history as well as his 

current complaints. The panel ultimately concluded that Foye 

did not suffer permanent neurological injuries from the carbon 

monoxide exposure. Rather, it concluded that any “temporary 

discomfort” Foye experienced from the exposure “would have 

resolved within a few hours,” and that he was “medically stable 

with regards to his industrial exposure by the time of his 

discharge from the emergency department” on the date of the

accident. The panel also concluded that Foye had “experienced 

 

1. The record is silent as to the nature of this experience.
Foye v. Labor Commission

20161039-CA 4 2018 UT App 124

most of his current symptoms prior to the industrial accident” 

and that “the change in symptoms is more likely than not a 

progression of his inadequately treated psychiatric disease, 

rather than a manifestation of a delayed neurologic syndrome 

from a possible carbon monoxide exposure.” As a result, the 

panel opined that the work accident caused no permanent 

impairment, that no medical care was currently necessary to 

treat the work condition, and that a permanent total disability 

was not established.

¶8 Foye objected to the medical panel report. He argued that 

the panel was not competent to conduct the evaluation, 

especially where neither of the panelists had expertise in offering 

psychiatric diagnoses, and he asserted that it failed to adequately 

address the carbon monoxide exposure issue or evidence. He 

also argued that his treating physicians were more competent 

than the panel, and he provided rebuttal letters from two of his 

treating physicians, each of whom disagreed with the panel’s 

assessment. Dr. Weaver in particular disagreed with the panel’s 

conclusion that Foye had not suffered permanent brain damage 

as a result of the exposure, and he contended that “the medical 

panel has a superficial understanding of carbon monoxide 

poisoning and its long-term impact.” Foye requested a hearing 

to address his concerns.

¶9 Rather than hold a hearing to resolve Foye’s objection, the 

ALJ sent the objection directly to the panel and requested that it

report whether the objection changed its opinion. The panel 

responded that, after reevaluation, its conclusions “remain[ed] 

unchanged.” In reaffirming its opinion, the panel addressed 

many of the comments raised as part of Foye’s objection, but it 

did not specifically address his objection to the panel’s 

competency to render an opinion in his case. Rather, the panel

stated that it “did not offer a psychiatric diagnosis” but instead 

merely referred to Foye’s medical records documenting preaccident diagnoses, and that it only “rendered a neurological 

opinion . . . based on the evidence presented in [Foye’s] medical 
Foye v. Labor Commission

20161039-CA 5 2018 UT App 124

record and his interview and neurological examination by the 

medical panel.”

¶10 Foye objected to the medical panel’s second report, again 

contending that the panel was not “competent to render an 

opinion” in his case. He asserted that “there is no evidence the 

panel doctors have ever treated anyone for carbon monoxide 

poisoning.” And he noted that in the panel’s second report there 

was no attempt to challenge the assertion that the panel lacked 

competence to opine on his condition.

¶11 In her Findings of Fact, Conclusions of Law, and Order, 

the ALJ concluded that “the weight of the evidence” did not 

support Foye’s assertion that the accident medically caused his 

ongoing symptoms, and she rejected his claim. The ALJ also 

determined that Foye’s objections to the medical panel report 

were not well-taken, and the ALJ admitted the report into the 

record. In particular, the ALJ found the panel to be “qualified to 

review and consider the medical evidence and opinions in this 

case,” that the panel’s evaluation was “well thought out” and 

“logical,” that the panel’s ultimate opinion was supported by 

Kodiak’s experts and the case history, and that the panel “acted 

in an impartial and neutral manner.” As to Dr. Biggs, the ALJ 

noted that he was “specifically selected because he has 

experience in treating CO poisoning,” “[a]s identified by the 

Utah Labor Commission medical director on the Medical Panel 

Chair directory.” That directory was not included in the record. 

The ALJ found that the other panelist, Dr. Watkins, was “a board 

certified neurologist.”

¶12 Foye filed a motion for review with the Board. In that 

motion, he largely repeated the arguments he made in his 

objections to the medical panel reports. Among other things, he 

argued that his treating physicians’ opinions were superior to 

those of the medical panel, and that it lacked the knowledge and 

skill to opine on his carbon monoxide poisoning.

¶13 The Board affirmed the ALJ’s decision, adopting the ALJ’s 

findings of fact and making additional findings of fact material 
Foye v. Labor Commission

20161039-CA 6 2018 UT App 124

to the motion for review. In regard to Foye’s argument that the 

panel was not competent, the Board found that the panel 

“consisted of experts in occupational medicine and neurology, 

who are qualified to address the issue of medical causation as it 

pertains to [Foye’s] neurological and cognitive impairments.” 

The Board also found the medical panel’s conclusions 

“persuasive on the issue of medical causation” and agreed with 

the ALJ that Foye had not established that the work accident was 

the medical cause of his current condition.

¶14 Foye filed a motion to reconsider with the Board. He 

argued for the first time that the opinions of Kodiak’s medical 

examiners were “unconstitutionally obtained” through an 

impermissible delegation of legislative authority by the 

Commission to private third parties, such as insurance 

companies. On this basis, he contended that he was prejudiced 

by Kodiak’s medical examiner reports because the Board relied 

on those reports to support the dismissal of his claim. The Board 

rejected Foye’s non-delegation argument on its merits and 

denied Foye’s request for reconsideration.

¶15 Foye now seeks judicial review.

ISSUES AND STANDARDS OF REVIEW

¶16 Foye argues that the Board abused its discretion by 

refusing to sustain his objection to the medical panelists’ 

expertise and exclude the medical panel report on that basis. 

“We review the [Board’s] refusal to exclude a medical panel 

report [on the basis of an objection] under an abuse of discretion 

standard, providing relief only if a reasonable basis for that 

decision is not apparent from the record.” Bade-Brown v. Labor 

Comm’n, 2016 UT App 65, ¶ 8, 372 P.3d 44 (quotation simplified). 

In so doing, we will defer to the Board’s factual findings about 

the issue so long as those findings are supported by substantial 

evidence. See Danny’s Drywall v. Labor Comm’n, 2014 UT App 

277, ¶ 11, 339 P.3d 624. “Substantial evidence is more than a

mere scintilla of evidence though something less than the weight 
Foye v. Labor Commission

20161039-CA 7 2018 UT App 124

of the evidence, and the substantial evidence test is met when a 

reasonable mind might accept as adequate the evidence 

supporting the decision.” Hutchings v. Labor Comm’n, 2016 UT 

App 160, ¶ 30, 378 P.3d 1273 (quotation simplified).2

¶17 Foye also argues that the medical examinations by 

Kodiak’s physicians of choice were obtained as a result of the 

Commission’s unconstitutional delegation of legislative 

authority to Kodiak through its own rule. This is a question of 

law, and we review the agency’s resolution of the question for 

correctness. See Conley v. Department of Health, 2012 UT App 274, 

¶ 7, 287 P.3d 452.

ANALYSIS

I. The Medical Panel

¶18 Foye argues that the Board exceeded its discretion by 

admitting the medical panel report and dismissing his claim for 

permanent total disability benefits where it “fail[ed] to appoint a 

medical panel which is competent in the medical field of carbon 

monoxide poisoning or neuropsychological diagnoses, in 

violation of Utah statute.” He contends that there is no evidence 

that either medical panelist specialized in the treatment of the 

conditions at issue in his case—either carbon monoxide 

 

2. Foye also argues, as an alternative basis for setting aside the 

Board’s decision, that the Commission’s decision-making 

process was unlawful. As evidence, he points to ex parte 

communications between the ALJ and the medical panel, his 

claims of medical panel bias, and his complaint regarding the 

Commission’s instruction to the medical panel on the issue of 

medical causation. As explained below, see infra ¶¶ 33–35, 

because we conclude it was harmful error to admit the medical 

panel report over Foye’s objections to the medical panelists’ 

expertise and ultimately instruct the appointment of a new panel 

on that basis, we do not address this argument.
Foye v. Labor Commission

20161039-CA 8 2018 UT App 124

poisoning or preexisting neuropsychological conditions, such as 

pseudo-dementia—as required by Utah Code section 34A-2-601. 

See Utah Code Ann. § 34A-2-601(1)(c) (LexisNexis 2015) 

(providing that “[a] medical panel appointed . . . shall consist of 

one or more physicians specializing in the treatment of the 

disease or condition involved in the claim”). As a result, he 

contends that the medical panel’s report was without 

foundation, and he requests that we set aside the Board’s 

dismissal of his claim and instruct the Commission to convene a 

new medical panel with physicians specializing in the treatment 

of his condition.

¶19 Foye’s argument requires us to evaluate whether the 

Board exceeded its discretion in its resolution of his objection 

and by ultimately admitting the medical panel report. Utah 

Code section 63G-4-403 provides that an appellate court “shall 

grant relief only if, on the basis of the agency’s record, it 

determines” that the agency action constituted “an abuse of the 

discretion delegated to the agency by statute” and that the 

“person seeking judicial review has been substantially 

prejudiced” as a result. Id. § 63G-4-403(4)(h)(i) (2016); see also id. 

§ 63G-4-403(4)(g). See generally Columbia HCA v. Labor Comm’n, 

2011 UT App 210, ¶¶ 8–9, 258 P.3d 640. After briefly describing 

the use of medical panels in workers’ compensation cases, we 

first consider whether the Board’s resolution of Foye’s objection 

constituted an abuse of discretion. Because we conclude that it 

did, we then consider whether Foye was substantially 

prejudiced thereby, ultimately concluding that he was. On that 

basis, we set aside the dismissal of Foye’s claim for permanent 

total disability and instruct the Commission to appoint another 

medical panel with qualified panelists to assess the medical 

causation issue.

A. The Appointment of Medical Panels

¶20 Utah Code section 34A-2-601 governs an administrative 

law judge’s appointment of a medical panel. It provides that an 

administrative law judge generally has discretion to appoint a 

medical panel. See Utah Code Ann. § 34A-2-601(1)(a) (stating 
Foye v. Labor Commission

20161039-CA 9 2018 UT App 124

that an administrative law judge “may refer the medical aspects 

of a case . . . to a medical panel” (emphasis added)). But an 

administrative law judge’s discretion is limited by the 

Commission’s rule that a panel must be appointed “where one or 

more significant medical issues may be involved,” including 

when there are “[c]onflicting medical opinions related to 

causation of the injury or disease.” Utah Admin. Code R602-2-

2(A)(1). See generally Migliaccio v. Labor Comm’n, 2013 UT App 51, 

¶ 3, 298 P.3d 676 (explaining that an administrative law judge is 

required to use a medical panel where there are “conflicting 

reports regarding medical causation of an employee’s injuries” 

(citing Willardson v. Industrial Comm’n, 904 P.2d 671, 674 (Utah 

1995))).

¶21 If a medical panel is appointed, Utah Code subsection 

34A-2-601(1)(c) sets forth the required qualifications of its 

member physicians. It states, “A medical panel appointed under 

this section shall consist of one or more physicians specializing 

in the treatment of the disease or condition involved in the 

claim.” The use of “shall” in this statute appears to “indicate[] 

mandatory action.” Friends of Great Salt Lake v. Utah Dep’t of Nat.

Res., 2017 UT 15, ¶ 29, 393 P.3d 291; see also Utah Code Ann. § 68-

3-12(1)(j) (LexisNexis 2014) (providing that the word “shall” in 

the Utah Code should generally be construed as meaning “an 

action [that] is required or mandatory”); Board of Educ. of Granite 

School Dist. v. Salt Lake County, 659 P.2d 1030, 1035 (Utah 1983) 

(stating that the word “shall” employed in statutes “is usually 

presumed mandatory”). And the provision specifically identifies 

what qualifies physicians to be appointed to a particular medical 

panel—those who “specializ[e] in the treatment of the disease or 

condition involved in the claim.” Utah Code Ann. 

§ 34A-2-601(1)(c); see also Edwards v. Tillery, 671 P.2d 195, 196 

(Utah 1983) (per curiam) (concluding that a physician was 

qualified under this provision where the plaintiff’s injury 

involved smoke inhalation and the physician at issue specialized 

in the treatment of pulmonary disease); Zimmerman v. Industrial 

Comm’n, 785 P.2d 1127, 1132 (Utah Ct. App. 1989) (concluding 

that the physicians on the medical panel—a neurologist and an 
Foye v. Labor Commission

20161039-CA 10 2018 UT App 124

orthopedic surgeon—were qualified to render an opinion on 

medical causation where, at the time of the panel’s appointment, 

the petitioner’s diagnosis involved hip and back pain).

¶22 Thus, the statute’s plain language requires that the panel 

consist of physicians who specialize in the “treatment of the 

disease or condition” at issue in the case. See Utah Code Ann. 

§ 34A-2-601(1)(c). And nothing in this provision “limits this 

requirement or provides exceptions to it.” See Friends of Great Salt 

Lake, 2017 UT 15, ¶ 29.

¶23 Once a medical panel report is completed, an 

administrative law judge and the Board have discretion to adopt 

or reject it on the basis of the evidence developed in the case. See 

Utah Code Ann. § 34A-2-601(2)(e) (LexisNexis 2015) (providing 

that, although an administrative law judge “may base . . . [her] 

finding and decision on the report of . . . a medical panel,” an 

administrative law judge “is not bound by [the medical panel] 

report . . . if other substantial conflicting evidence in the case 

supports a contrary finding”); see also Bade-Brown v. Labor 

Comm’n, 2016 UT App 65, ¶ 13, 372 P.3d 44 (explaining that 

“even if the ALJ chooses to adopt the medical panel’s report, it is 

the prerogative and the duty of the [Board] to consider not only 

the report of the medical panel, but also all of the other evidence 

and to draw whatever inferences and deductions fairly and 

reasonably could be derived therefrom” (quotation simplified)). 

This is because the Board, not the medical panel, is the “ultimate 

finder of fact.” Hutchings v. Labor Comm’n, 2016 UT App 160, 

¶ 23, 378 P.3d 1273; see also Bade-Brown, 2016 UT App 65, ¶ 15 

(stating that the Board “may also, in its role as the ultimate factfinder, choose to rely on one portion of a medical panel report 

and to reject other inconsistent portions” (quotation simplified)); 

Danny’s Drywall v. Labor Comm’n, 2014 UT App 277, ¶ 14, 339 

P.3d 624 (“When a medical panel is convened, the role of the

Medical Panel is to evaluate medical evidence and advise an 

administrative law judge with respect to the administrative law 

judge’s ultimate fact-finding responsibility.” (quotation 

simplified)).
Foye v. Labor Commission

20161039-CA 11 2018 UT App 124

¶24 However, if a written objection is made to a medical panel 

report, “the administrative law judge may set the case for 

hearing to determine the facts and issues involved.” Utah Code 

Ann. § 34A-2-601(2)(f)(i). “An ALJ’s decision whether to admit a 

medical panel report into evidence or to hold an objection 

hearing is entirely discretionary, and we will provide relief only 

when a reasonable basis for that decision is not apparent from 

the record.” Right Way Trucking, LLC v. Labor Comm’n, 2015 UT 

App 210, ¶ 10, 357 P.3d 1024 (quotation simplified). Likewise, an 

administrative law judge’s (and the Board’s) findings about, and 

ultimate resolution of, the petitioner’s objection must have 

support in the record to be sustained. See Bade-Brown, 2016 UT 

App 65, ¶ 19; Danny’s Drywall, 2014 UT App 277, ¶ 11.

B. Foye’s Objections to the Medical Panel Report

¶25 Foye asserts on judicial review that the Board exceeded its 

discretion in affirming admission of the medical panel report 

where, despite the panel’s opportunity to provide supportive 

evidence, no evidence exists to suggest that either panelist was 

qualified under Utah Code section 34A-2-601(1)(c), as there is no 

evidence that either panelist specialized in the treatment of 

carbon monoxide poisoning or preexisting pseudo-dementia. We 

agree.

¶26 As discussed above, we will sustain the Board’s 

resolution of a petitioner’s objection so long as there is a 

reasonable basis for that resolution in the record. See, e.g., Right 

Way Trucking, 2015 UT App 210, ¶ 10. Because the record does 

not support the Board’s determination that the medical panel 

was qualified to render an opinion in this case, we conclude that 

the Board exceeded its discretion by overruling Foye’s objections 

on that basis and admitting the medical panel report.

¶27 In her initial interim findings, the ALJ identified the 

relevant disease or condition involved in the claim as “carbon 

monoxide poisoning” or a preexisting condition that “may be 

pseudo-dementia.” In addressing Foye’s objection to the medical 

panel report, the ALJ found the panelists qualified to address 
Foye v. Labor Commission

20161039-CA 12 2018 UT App 124

these conditions based upon a Commission directory that 

apparently identified Dr. Biggs, a family medicine physician, as 

having experience treating carbon monoxide poisoning, and also 

based upon the fact that Dr. Watkins is a board certified 

neurologist. The directory is not part of the record.

¶28 On review of the ALJ’s decision, the Board found the 

panelists qualified only after over-generalizing the conditions at 

issue. Rather than finding that the panelists were qualified to 

render an opinion based on their specialties in treating the 

identified conditions involved in the claim—carbon monoxide 

poisoning and/or preexisting pseudo-dementia—the Board 

determined that the panelists were “experts in occupational 

medicine and neurology, who are qualified to address the issue 

of medical causation as it pertains to [Foye’s] neurological and 

cognitive impairments.”

¶29 While we would ordinarily defer to the Board’s findings 

on this issue, we cannot do so where there is no evidence in the 

record to support them. See Danny’s Drywall v. Labor Comm’n, 

2014 UT App 277, ¶ 11, 339 P.3d 624. Foye’s objection put the 

panelists’ qualifications to render an opinion directly at issue. 

But neither the ALJ nor the Board identified evidence that 

supported a conclusion that the panelists were specialists in 

treating carbon monoxide poisoning or pseudo-dementia. The 

directory the ALJ referred to as evidence that Dr. Biggs had 

experience with carbon monoxide poisoning was not included in 

the record,3 and the panelists did not, in response to Foye’s 

objection, provide evidence of their qualifications upon which 

the ALJ and the Board could rely. Further, the Board merely 

identified both physicians’ general practice expertise as 

apparently sufficient. Thus, no record evidence supports the 

Board’s determination that either panelist specialized in treating 

carbon monoxide poisoning or Foye’s potentially preexisting 

 

3. It is not clear that the directory would demonstrate the 

panelists’ qualifications in any event.
Foye v. Labor Commission

20161039-CA 13 2018 UT App 124

pseudo-dementia. See Utah Code Ann. § 34A-2-601(1)(c)

(LexisNexis 2015).

¶30 Accordingly, we cannot conclude that the ALJ and the 

Board had an evidentiary basis to find the panelists were in fact 

qualified and, on that basis, overrule Foye’s objection. See BadeBrown v. Labor Comm’n, 2016 UT App 65, ¶ 8, 372 P.3d 44 

(explaining that we will provide relief from the Board’s refusal 

to exclude a medical panel report on the basis of an objection “if 

a reasonable basis for that decision is not apparent from the 

record” (quotation simplified)). Rather, in these circumstances—

where the petitioner objected to the panelists’ qualifications but 

no evidence was provided or adduced to rebut the objections—

the objections were well-taken, and the medical panel reports 

should have been excluded. See Johnston v. Labor Comm’n, 2013 

UT App 179, ¶¶ 29–31, 307 P.3d 615 (explaining that a reviewing 

court should consider whether a petitioner’s objection to a 

medical panel report is well-taken by looking to the deficiencies 

alleged and the record supporting the validity of the panel 

report). The Board therefore exceeded its discretion in admitting 

the panel report over Foye’s objections to the panelists’ 

qualifications. See id.

C. Substantial Prejudice

¶31 We also conclude that Foye was substantially prejudiced 

by the Board’s admission of and subsequent reliance on the 

medical panel report over his objections to the panelists’ 

expertise. See Utah Code Ann. § 63G-4-403(4) (LexisNexis 2016). 

A person is substantially prejudiced by an agency action if that 

challenged action was not harmless. See Petersen v. Utah Labor 

Comm’n, 2017 UT 87, ¶ 8, 416 P.3d 583; WWC Holding Co. v. 

Public Service Comm’n, 2002 UT 23, ¶ 7, 44 P.3d 714. “An error 

will be harmless if it is sufficiently inconsequential that there is 

no reasonable likelihood that the error affected the outcome of 

the proceedings.” Smith v. Department of Workforce Servs., 2010 

UT App 382, ¶ 17, 245 P.3d 758 (quotation simplified). 
Foye v. Labor Commission

20161039-CA 14 2018 UT App 124

¶32 The statute’s plain language, requiring the panelists to be 

physicians specializing in treating the condition involved in the 

claim, indicates that a particular physician’s qualifications vis-àvis a particular claimed disease or condition matter; the obvious 

implication is that not every physician will be qualified to sit on 

a particular medical panel and render an opinion. See Utah Code 

Ann. § 34A-2-601(1)(c); see also Edwards v. Tillery, 671 P.2d 195, 

196 (Utah 1983) (per curiam) (recognizing an objection to 

medical panelists’ qualifications to render an opinion regarding 

the conditions at issue); Zimmerman v. Industrial Comm’n, 785 

P.2d 1127, 1132–33 (Utah Ct. App. 1989) (same). And while the 

Board is not required to rely on the medical panel’s findings, it is 

not unusual for the Board to do so. Danny’s Drywall, 2014 UT 

App 277, ¶ 14. We conclude that under the circumstances 

present here, the Board’s admission of the medical panel report 

was not harmless.

¶33 In this case, the issue of medical causation was disputed, 

and the medical panel was enlisted to assist the ALJ (and, later, 

the Board) in resolving this dispute and in making the medical 

causation determination. But there was no evidence that the 

panelists were qualified to render the medical causation 

opinions about the conditions at issue. Nevertheless, the ALJ 

admitted the medical panel report into evidence, which the 

Board affirmed. And, importantly, it is apparent from their 

respective decisions that the ALJ and the Board relied heavily 

upon the medical panel’s medical causation conclusions to 

resolve the medical causation dispute and ultimately dismiss 

Foye’s claim. Although the ALJ noted some medical opinion 

evidence apart from the panel’s report regarding medical 

causation, she ultimately determined that the panel’s report was 

a “well thought out” and “logical evaluation” that persuaded 

her that Foye had not demonstrated his current condition was 

medically caused by the work accident. The Board, in affirming 

the ALJ’s decision, likewise found “the medical panel’s 

conclusions to be persuasive on the issue of medical causation” 

and added that the panel’s conclusions were “the product of . . . 

expert review.”
Foye v. Labor Commission

20161039-CA 15 2018 UT App 124

¶34 In sum, the medical panel’s apparent lack of requisite 

expertise is a fundamental defect and undermines the ALJ’s and 

the Board’s reliance on the panel’s medical causation opinions 

and conclusions: the panelists were not duly qualified to assess 

the conditions involved in the claim as required under section 

34A-2-601 or to render a medical opinion in the case at all. In 

these circumstances, where there is a fundamental defect in the 

medical panel’s report—one that suggests the panelists were not 

qualified to serve on the panel in the first instance—and the ALJ 

and the Board relied on the defective report to resolve a 

causation dispute, we cannot conclude that admitting the 

medical panel report was harmless. See Petersen, 2017 UT 87, ¶ 8.

¶35 We therefore set aside the dismissal of Foye’s claim for 

permanent total disability on the basis of the industrial accident 

in October 2013. We instruct the Commission to appoint another 

medical panel, with qualified panelists to assess the medical 

causation issue, and to then consider the issue of medical 

causation as it relates to Foye’s claim.

II. Foye’s Other Claims

¶36 Foye has asserted one other primary claim on judicial 

review.4 Foye contends that the Commission’s promulgation of 

 

4. As we have already noted, supra note 2, Foye also contends 

that the Commission engaged in an unlawful decision-making 

process in dismissing his case, and as evidence in support of this 

contention, he points toward several actions relating to the 

medical panel. In particular, he alleges that (1) the ALJ engaged 

in improper ex parte communications with the medical panel, (2) 

the Commission provided the medical panel with an out-ofjurisdiction instruction pamphlet that contains erroneous 

instructions regarding causation determinations, and (3) the 

Commission permitted a biased medical panel to render an 

opinion in his case. But each issue relates to the specific medical 

panel already convened and its members, actions, and 

(continued...)
Foye v. Labor Commission

20161039-CA 16 2018 UT App 124

rule R602-2-1(F)(3), which permits employers to require an 

employee to submit to a medical examination by the physician of 

the employer’s choice, constitutes an unconstitutional delegation 

of legislative authority to employers and insurance carriers 

under Article V, Section 1, of Utah’s constitution.5 On that basis, 

Foye claims that the Commission may not rely on the medical 

reports prepared by Kodiak’s physicians. See Utah Code Ann. 

§ 34A-2-602(1) (LexisNexis 2015) (“The division or an 

administrative law judge may require an employee claiming the 

right to receive compensation . . . to submit to a medical 

examination at any time, and from time to time, at a place 

reasonably convenient for the employee, and as may be 

provided by the rules of the commission.”).

¶37 In particular, Foye argues that rule R602-2-1(F)(3) 

constitutes an unconstitutional delegation of legislative authority 

because it delegates the right and authority to respondent 

employers and insurance carriers to require medical 

examinations of the employee, without qualification, and in 

contravention to the employee’s privacy. Foye contends that the 

rule improperly places “employers and insurance carriers on 

equal footing” with the Commission by essentially “remov[ing] 

 

(...continued)

considerations. Because we are instructing the Commission to 

convene a new medical panel to address the question of medical 

causation, we need not consider these issues.

5. Article V, Section 1 of the Utah Constitution provides,

The powers of the government of the State of Utah 

shall be divided into three distinct departments, 

the Legislative, the Executive, and the Judicial; and 

no person charged with the exercise of powers

properly belonging to one of these departments, 

shall exercise any functions appertaining to either 

of the others, except in the cases herein expressly 

directed or permitted.
Foye v. Labor Commission

20161039-CA 17 2018 UT App 124

the exercise of discretion” or oversight over the conditions 

related to a respondent’s entitlement to medical examinations 

from the Commission entirely. In making this argument, Foye 

relies heavily on our supreme court’s decision in Revne v. Trade 

Commission, 192 P.2d 563 (Utah 1948), arguing that the 

circumstances in that case—where our supreme court struck 

down certain regulations as unconstitutional delegations of 

legislative power—are similar to those present in his case.

¶38 We are not persuaded. Although Foye claims that the rule 

essentially places the employer on the same level with the 

Commission and that the Commission, in promulgating the rule, 

has effectively surrendered all of its necessary oversight 

discretion to private parties, Foye has not demonstrated how this 

is so. While rule R602-2-1(F)(3) gives respondent employers the 

right to require an employee to undergo a medical examination, 

nothing in the language of rule appears to prevent an employee 

from seeking relief, or the Commission from providing relief, if 

the employer, for example, makes unreasonable demands of the 

employee related to a required medical examination. Nor has 

Foye provided evidence suggesting that, as a practical matter, 

the Commission has surrendered through the rule its discretion 

and oversight authority over employee medical examinations in 

workers’ compensation cases.

¶39 In this regard, we agree with the Board that the case Foye 

primarily relies on in making his argument is inapposite. In 

Revne, our supreme court held that the Utah State Barber Board 

improperly delegated its legislative authority to the class of 

barbers. Id. at 568. In that case, the Board promulgated 

regulations that essentially conferred upon a 70% majority of 

barbers in an area the sole authority to initiate changes in prices 

or opening and closing hours for barber shops in a given area; 

under the regulations, the Barber Board was left with no power 

“to act for the public upon its own initiative.” Id. In concluding 

the regulations were unconstitutional, the supreme court was 

especially troubled that, although the law was “passed to protect 

the public health and safety” and the Barber Board theoretically 
Foye v. Labor Commission

20161039-CA 18 2018 UT App 124

stood between the public and the 70% of the barbers required to 

agree upon and initiate changes to prices and hours, the Barber 

Board’s lack of initiative authority subjected the public interest 

to “the whim” of the barbers, a group “who may be very 

antagonistic to [the] public interest.” Id. at 567–68. Here, in 

contrast, it is not apparent from the language of the rule that the 

Commission, in promulgating it, has necessarily surrendered its 

oversight and discretion over the medical examination process to 

employers or insurance carriers in contravention to the greater 

public’s interest.

¶40 Furthermore, to the extent Foye is arguing that rule R602-

2-1(F)(3) is not consistent with the policy or language of Utah 

Code section 34A-2-602(1)—the statute authorizing the 

Commission to make rules regarding medical examinations—

Foye has not demonstrated how the rule is inconsistent. See 

generally Robinson v. State, 2001 UT 21, ¶¶ 14, 21, 20 P.3d 396

(explaining that an agency “may only effect policy mandated by 

statute” through their rules and that an “agency’s rules need 

only be consistent with its governing statutes” (quotation 

simplified)). The plain language of the statute at least facially 

appears to confer upon the Commission discretion to make rules 

to facilitate medical examinations of the employee. See State v. 

Briggs, 2008 UT 83, ¶¶ 15–16, 199 P.3d 935 (addressing a statute 

that confers authority on the agency to define requirements and 

the authority to devise rules to prescribe procedures to fulfill 

certain requirements, and concluding that a statute that “merely 

confers discretion [on the executive agency at issue] to prescribe 

procedures . . . to fulfil statutory requirements” does not run 

afoul of the non-delegation doctrine). And rule R602-2-1(F)(3) 

appears to be just that—a rule facilitating medical examinations 

of the employee.

¶41 Accordingly, we are not persuaded that rule R602-2-

1(F)(3) constitutes an unconstitutional delegation of legislative 

power to employers and insurance carriers, and we therefore 

decline to instruct the Commission that it may not rely on 

Kodiak’s medical examinations.
Foye v. Labor Commission

20161039-CA 19 2018 UT App 124

CONCLUSION

¶42 We conclude that the Board exceeded its discretion when 

it found that the medical panelists were qualified to render a 

medical opinion in this case and on that basis overruled Foye’s 

objection to the medical panel reports. We therefore set aside the 

Board’s dismissal of Foye’s claim for permanent total disability 

and instruct the Commission to appoint a new medical panel to 

evaluate the issue of medical causation. Because we set aside the 

Board’s dismissal, we decline to address Foye’s overall claim 

that the Commission engaged in an unlawful decision-making 

process. We nevertheless reject Foye’s claim that the 

Commission’s rule R602-2-1(F)(3) constitutes an unconstitutional 

delegation of legislative authority to respondents.