2023 UT App 108

THE UTAH COURT OF APPEALS

BASF CORPORATION AND INDEMNITY INSURANCE COMPANY,

Petitioners,

v.

LABOR COMMISSION AND BRADLEY WEST,

Respondents.

Opinion

No. 20220037-CA

Filed September 21, 2023

Original Proceeding in this Court

Brad J. Miller, Attorney for Petitioners

Richard R. Burke, Attorney for

Respondent Bradley West

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER

and DAVID N. MORTENSEN concurred.

ORME, Judge:

¶1 Bradley West was employed by BASF Corporation for over 

thirty years, during which time he was exposed to chemicals and 

particulates common in the automotive refinishing business. He 

was also injured in a warehouse accident in 2015. Following the 

accident, West continued to work but experienced significant 

respiratory symptoms that have often been debilitating and, in 

any event, life-altering.

¶2 West filed claims for workers’ compensation benefits, 

which were contested by both BASF Corporation and its insurer, 

Indemnity Insurance Company (collectively, Employer, unless 

the context suggests the reference is solely to BASF Corporation). 

The administrative law judge (ALJ) appointed a medical panel to 

review West’s extensive medical records and to assist in clarifying 

conflicting medical opinions regarding the causation of West’s 
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maladies. When the ALJ returned a decision in West’s favor, 

Employer requested that the Labor Commission Appeals Board 

(the Commission) review the ALJ’s decision. The Commission 

then sent the case back to the ALJ, requesting that a second 

medical panel be appointed to provide further clarification on the 

issue of medical causation. After receiving the second medical 

panel’s opinion, the ALJ again found in favor of West, and again 

the Commission was asked to review the ALJ’s determination.

¶3 Following the Commission’s favorable decision for West,

Employer now seeks judicial review of that determination. We 

decline to disturb the Commission’s order.

BACKGROUND1

Industrial Accident and Exposure

¶4 Employer is in the business of manufacturing chemicals 

that make up automotive finishes and bodywork products used 

by autobody technicians. West held several different roles during 

his nearly thirty years of working for Employer, but beginning in 

2015, his role changed to one where he was responsible for 

training autobody technicians on how to do complete autobody 

repair work. More specifically, West trained technicians how to 

perform repairs on damaged vehicles and how to utilize 

Employer’s paint system to apply automotive finishes. During his 

employment, West was exposed to a veritable laundry list of 

chemicals. Prior to March 2015, West had already “been 

diagnosed with industrial asthma since 1997 along with a 

deviated septum, sinus cyst, bronchitis, and allergic rhinitis due 

to allergens.”

1. “In reviewing an order from the Commission, we view the facts 

in the light most favorable to the Commission’s findings and 

recite them accordingly.” JBS USA v. Labor Comm’n, 2020 UT App 

86, n.1, 467 P.3d 905 (quotation simplified).
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¶5 On March 12, 2015, West was moving inventory from one 

of Employer’s warehouses to another as part of his normal 

workplace responsibilities. He reached to a top shelf for a gallon 

can of an industrial automotive resin called SB01, and in an 

attempt to obtain a better hold on the can, he tipped it in his 

direction. But the lid of the can had not been properly secured, 

and once West tipped it toward himself, the SB01 resin spilled 

onto his face and down his body. The incident left West with 

“burning in his eyes, ‘plugged sinuses’, runny nose, congestion, 

rashes on his face and arms, and significant coughing.” Although 

most of these symptoms resolved with time, he was left with 

continued “sinus congestion and a runny nose.”

¶6 Following the accident, West continued to train others on 

the use of Employer’s paint system until March 8, 2016. The 

process involved using several different chemicals that would 

“gas off,” operating sanding tools that produced airborne 

particulates, and mixing various compounds to produce the 

autobody paint, which is then sprayed through a paint gun.

¶7 Needless to say, the air surrounding West while he was 

training others and working was full of chemicals and 

particulates. So during the times “when he anticipated he would 

be exposed to chemicals and dust,” he wore the appropriate safety 

apparatus, including an “air supplied hood respirator, a paint 

suit, nitrile solvent resistant gloves, and safety boots.” He would, 

however, frequently walk through auto shops without the safety 

apparatus when looking for a painter or manager and, as a result,

was exposed to whatever was in the air while doing so. West 

reported that beginning in October 2015, he had been exposed to 

an increased amount of aerosol paints and chemicals as part of his 

changed job duties.

¶8 After the SB01 resin incident, West continued to have a 

cough and sinus congestion, but he chalked it up to “seasonal 

allergies.” When his symptoms worsened in November 2015, he 

sought medical treatment, believing that his symptoms were 

attributable to a cold, but he reported that he had been suffering 
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from congestion and what he believed were allergies since the 

summer. About three months later, West reported that he had 

been experiencing “difficulty breathing, [a] cough, congestion, 

and a runny nose” as well as “occasional sinus pain [and] clogged 

ears” during the preceding three months.

Conflicting Medical Opinions2

¶9 In March 2016, West started coughing while giving a 

product demonstration in a paint booth. He was wearing his 

safety equipment at the time, but he experienced two hours of 

continual coughing, to the point that he lost consciousness twice 

during the spell.

¶10 Subsequent testing and medical visits led to a diagnosis of 

“interstitial lung disease[3] of unclear etiology.”4 In April 2016, 

West underwent a biopsy, which indicated that he was suffering 

2. We outline the many, and often conflicting, medical opinions 

and diagnoses in the record because of the important context this 

provides for the decision to appoint a medical panel in the first 

place and the subsequent decision to appoint a second medical 

panel. As will be seen, the cause of West’s ailments was far from 

straightforward.

3. Interstitial pulmonary disease, or “interstitial lung disease,” 

“describes a large group of disorders, most of which cause 

progressive scarring of lung tissue. The scarring associated with 

interstitial lung disease eventually affects your ability to breathe

and get enough oxygen into your bloodstream.” Interstitial Lung 

Disease, Mayo Clinic, https://www.mayoclinic.org/diseasesconditions/interstitial-lung-disease/symptoms-causes/syc-203531

08 [https://perma.cc/DGY5-UJJP].

4. Etiology is “the cause of a disease or abnormal 

condition.” Etiology, Merriam-Webster, https://www.merriamwebster.com/dictionary/etiology [https://perma.cc/GVD5-

HHRP].
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from a condition “most consistent with chronic eosinophilic 

pneumonia” (EP).5 West then started prednisone treatment. In 

May 2016, the same doctor who diagnosed him with interstitial 

lung disease offered the opinion that West’s malady was likely the 

result of “long term exposure or occupational exposure in the auto 

industry.” In August 2016, the director of the Interstitial Lung 

Disease Program at the University of Utah opined that West’s 

condition “was caused by 34 years of occupational chemical 

exposures, with specific notice given to . . . isocyanates.”6

¶11 In December 2016, another of West’s doctors, Dr. Gleich, 

indicated that it was his belief that “the March 1, 2015 to March 8, 

2016 industrial exposure caused more than 50% of” West’s EP and 

“that industrial inhalation of diisocyanate[7] may have 

caused/worsened [West’s] lung disease.” During this time, West’s 

5. “Eosinophilic pneumonia is a group of rare infections that 

affects your lungs. A type of white blood cell builds up in your 

lungs and blood, causing inflammation and damage.” Eosinophilic

Pneumonia, Cleveland Clinic, https://my.clevelandclinic.org/healt

h/diseases/23955-eosinophilic-pneumonia [https://perma.cc/YQ2

S-NM97].

6. “Isocyanates are compounds . . . , which are components of” 

among other things, “polyurethane paints.” Isocyanates, United 

States Dep’t of Labor: Occupational Safety & Health Admin., 

https://www.osha.gov/isocyanates (last visited Sept. 7, 2023).

“Isocyanates are the raw materials that make up all polyurethane 

products.” Id. “Health effects of isocyanate exposure include 

irritation of skin and mucous membranes, chest tightness, and 

difficult breathing.” Id. “The main effects of hazardous exposures 

are occupational asthma and other lung problems, as well as 

irritation of the eyes, nose, throat, and skin.” Id.

7. “The most widely used [isocyanate] compounds are 

diisocyanates[.]” Isocyanates, Centers for Disease Control 

& Prevention, https://www.cdc.gov/niosh/topics/isocyanates/def

ault.html [https://perma.cc/U3ER-SQVD].
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health continued to decline,8 and he applied for workers’

compensation benefits for the (1) industrial accident and 

(2) occupational disease, asserting that both were a result of his 

occupational exposure between March 2015 and March 2016.

¶12 In May 2017, after conducting a medical examination, one 

of Employer’s medical consultants concurred with the previous 

diagnoses of “[EP] and interstitial lung disease” but reached a 

different conclusion regarding the cause of West’s condition. The 

doctor noted that the EP “is idiopathic[9] and the interstitial lung 

disease is inflammatory, which is not consistent with known 

causes.” That same month, another medical consultant for 

Employer, Dr. Schwartz, conducted an additional medical 

evaluation and also concurred with the EP diagnosis but 

concluded that the chemical exposure was not the “probable 

cause” of West’s condition. Dr. Schwartz further noted that 

simply because someone developed a condition “after years of 

work with a number of paint products” does not automatically 

mean that the condition was caused by exposure to those 

products.

¶13 In September 2017, Dr. Pearl, an adjunct professor in the 

University of Utah’s Division of Critical Care and Pulmonary 

8. For example, West underwent a functional capacity evaluation, 

during which the doctor noted that “any exertion induced 

coughing, shortness of breath, spitting for removal of sputum, 

and/or blowing of the nose to clear the airway to continue the task 

assigned.” The doctor also indicated that with any exertion,

West’s heart rate spiked and his oxygen levels dropped drastically 

in a short amount of time, which also appeared to have an effect 

on his “mental capacity and required [West] to ‘regroup’ to 

remember the task he had been performing.”

9. “Idiopathic” means “arising spontaneously or from an 

obscure or unknown cause.” Idiopathic, Merriam-Webster, 

https://www.merriam-webster.com/dictionary/idiopathic [https:/

/perma.cc/5NBB-HC53].
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Medicine, reviewed West’s medical records to aid in the disability 

determination. Dr. Pearl diagnosed West with “work-related 

asthma due to his occupational exposure” while employed “prior 

to March 2015.” But while agreeing with the EP diagnosis, Dr. 

Pearl “was unsure of the medical cause,” noting West’s 

“diagnosis of [EP] is proven but its relationship to his exposure is 

not.” Dr. Pearl also opined that “[i]t is more likely than not, that 

Mr. West’s March 12, 2015 industrial accident aggravated, 

accelerated and or permanently worsened his industrially caused 

asthma.”

¶14 In January 2018, Dr. Schwartz authored a supplemental 

medical evaluation disagreeing with Dr. Pearl’s diagnosis of 

industrial asthma. He explained that there was no evidence to 

support it, and he did not deviate from his previous conclusion 

that West’s EP had no “established relationship with his exposure 

to paint, isocyanates, or any other chemicals.” By April 2018, Dr. 

Gleich deemed West “totally disabled” and not expected to return 

to work.

First Medical Panel 

¶15 In August 2018, the ALJ referred the case to a medical panel 

to review West’s medical records and to respond to the ALJ’s 

questions regarding causation of his medical condition. Two of 

the questions for the medical panel requested an opinion about

what portion of West’s condition was caused by the industrial 

accident and the occupational exposure. Notably, the chair of the 

medical panel, Dr. Jarvis, “served on the faculty of National 

Jewish Center in Denver for several years, which is a tertiary care 

clinical facility specializing in respiratory disorders,” and while 

there, he “focused exclusively on disease caused by work and 

environment affecting the respiratory tract.” The medical panel’s 

subsequent report opined that West “has chronic bronchitis 

caused by the March 12, 2015 industrial accident.” In addressing 

the occupational exposure between March 2015 and March 2016, 

the panel agreed that West has EP “due to exposures at his work, 

specifically isocyanates,” which are “a known immunologic cause 
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of occupational asthma,” and highlighted that many physicians 

believe that isocyanates can cause conditions related to EP. The 

medical panel noted that the EP diagnosis is relatively new and 

that “[m]ost of the cases described to date in the medical literature 

are of an unknown etiology” but that one medical case report 

indicates that occupational exposure to isocyanates can result in 

EP. The medical panel explained that “there is no scientific 

consensus concerning whether isocyanate exposure causes” EP 

and, “acknowledging this paucity of information, . . . agree[d] 

that a reasonable degree of medical probability cannot be 

achieved given the state of clinical science.” Nonetheless, the 

medical panel found, with our emphasis, “causation in this case 

to be strongly possible.”

¶16 In July 2020, the ALJ adopted the medical panel’s 

conclusions and ordered that Employer provide West 

compensation for past and future medical expenses associated 

with his condition, as well as total disability compensation. 

Employer requested that the Commission review the ALJ’s order,

arguing that the ALJ erred in awarding West compensation 

because the medical panel did not reach a conclusion of medical 

probability regarding the causation of West’s EP. On review, the 

Commission explained that the “circumstances of this case leave 

the [Commission] with the unusual scenario of having to make a 

determination on medical causation for an uncommon condition 

that even the medical panel did not fully comprehend.”

¶17 The Commission then remanded the case for further

consideration, ordering that a second medical panel be appointed 

and noting that the remand did “not affect [the ALJ’s] finding on 

the medical causal connection between the work accident . . . and 

Mr. West’s chronic bronchitis condition or his claim for benefits 

on such condition.” The Commission further explained that its 

remand was not due to a lack of experience on the part of the first 

medical panel; quite the opposite: the Commission concurred that 

the medical panel had sufficient expertise to provide an opinion 

on West’s medical condition and explained that this was so even 
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when the medical panel was not able to reach a more definite 

conclusion of reasonable medical probability.

Second Medical Panel and the Commission’s Order

¶18 The second medical panel comprised three doctors who, 

either through research or treatment of patients, collectively had 

specialized knowledge or experience regarding occupational 

medicine, including occupational asthma and interstitial lung 

disease, and in diagnosing and treating pulmonary pathologies.

In April 2021, after reviewing the available medical records, the 

second medical panel issued a report indicating that the case was 

“complex and difficult because of [the] ambiguity of [West’s] 

presentation and the lack of scientific literature about his specific 

condition related to his exposure.” But the panel noted that West’s 

lung biopsy results “support[ed] inhalation exposure/s as the 

cause of his disorder.” The panel further explained that it 

reviewed the relevant MSDSs10 and that per those documents, it 

was clear that West had been exposed to isocyanates, which “are 

known to cause pulmonary dysfunction,” as well as to “several 

other chemicals that lack appropriate research to determine 

chronic toxicity and effects.” The panel also explained that West 

“has low personal risk factors for developing non-industrially 

related” disease, such as no exposure to animal allergens, no 

“exotic travel history,” no smoking history, and no other 

“autoimmune disease or family history of pulmonary 

10. MSDS is an acronym for “Material Safety Data Sheet,” which 

“lists the hazardous ingredients of a product, its physical and 

chemical characteristics . . . , its effect on human health, the 

chemicals with which it can adversely react, handling 

precautions, the types of measures that can be used to control 

exposure, emergency and first aid procedures, and methods to 

contain a spill.” Standard Interpretations: The Purpose of Material 

Safety Data Sheets, United States Dep’t of Labor: Occupational 

Safety & Health Admin., https://www.osha.gov/lawsregs/standardinterpretations/1995-01-25-0 (last visited Sept. 7, 

2023).
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dysfunction.” The panel finally noted that it believed that West’s 

“occupational disease is largely, if not all, attributable to 

industrial causes,” that the “occupational exposure permanently 

worsened [West’s] chronic sinopulmonary disease,” and that 

West’s disease was wholly attributable to his occupational 

exposure.

¶19 Employer objected to the second medical panel’s report,

primarily taking issue with the panel’s opining on the causation 

issue even while acknowledging the lack of scientific literature 

regarding the result of occupational exposure to isocyanates.

Employer asserted that because of the lack of literature, the 

second medical panel “chose to speculate regarding the causation 

of” West’s condition.

¶20 The ALJ subsequently issued an order referencing the 

second medical panel’s findings, concluding that the evidence 

supported the determination that West’s chronic bronchitis was 

caused by the industrial accident and that his occupational 

exposure “was the sole cause (100%) of the permanent 

aggravation” of his EP. The ALJ again ordered Employer to 

compensate West for the associated medical expenses and to 

provide West with total disability benefits.11

¶21 Employer again requested a review of the ALJ’s order, and 

the Commission affirmed the order. The Commission explained 

that the second medical “panel’s report shows that it considered 

the evidence presented and arrived at a well-reasoned and 

evidence-based conclusion regarding the causative factors of Mr. 

West’s condition” and concluded that it was convinced by the 

second medical panel’s opinion regarding causation based on the 

11. The order also overruled Employer’s objections to the second 

medical panel’s report.
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panel’s “impartial position, collegial review of the evidence, and 

expertise in treating the type of respiratory condition at issue.”12

¶22 Employer now seeks judicial review of the Commission’s 

final decision.13

ISSUES AND STANDARDS OF REVIEW

¶23 Employer first contends that the Commission abused its 

discretion when it remanded West’s case back to the ALJ with the 

request that a second medical panel be appointed. “We generally

review the Commission’s decisions regarding appointment of 

medical panels for abuse of discretion.” Sysco Corp. v. Labor 

Comm’n, 2021 UT App 126, ¶ 13, 502 P.3d 1237 (quotation 

simplified). See Utah Code Ann. § 63G-4-403(4) (LexisNexis 2019) 

(“The appellate court shall grant relief only if, on the basis of the 

agency’s record, it determines that a person seeking judicial 

review has been substantially prejudiced by . . . agency action 

[that] is . . . an abuse of discretion delegated to the agency by 

statute.”). “A discretionary decision involves a question with a 

range of acceptable answers, some better than others, and the 

12. The Commission did set aside a portion of the ALJ’s award for 

reasons unrelated to the issues before us.

13. At one point prior to oral argument, West filed a motion to 

advance his case on our docket, arguing that Employer had 

effectively abandoned its request for judicial review because it 

had not filed a reply brief and requesting that we “advance this 

appeal to the next procedural stage” “so that [the court] may 

promptly dispose of [Employer’s] appeal.” Prior to this opinion, 

we had not ruled on that motion. Under the Utah Rules of 

Appellate Procedure, filing a reply brief is optional. See Utah R. 

App. P. 24(b) (“The appellant or petitioner may file a reply brief.”) 

(emphasis added). Because Employer was present at oral 

argument and prepared to proceed, West’s request to dispose of 

Employer’s appeal on the theory of abandonment is denied.
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agency is free to choose from among this range without regard to 

what an appellate court thinks is the best answer.” Graphic 

Packaging Int’l Inc. v. Labor Comm’n, 2021 UT App 82, ¶ 21, 495 P.3d 

228 (quotation simplified). When applying this particular 

standard of review, “we will reverse only if there is no reasonable 

basis for the decision.” Id. (quotation simplified).

¶24 In the alternative, Employer argues that even if the 

Commission did not abuse its discretion in remanding the case for 

the appointment of a second medical panel, both the ALJ and the 

Commission erroneously concluded that the second medical 

panel’s opinions provided the requisite level of reasonable 

medical probability to reach a decision regarding the medical 

causation of West’s condition. Whether “medical causation exists 

is a question of fact we review for substantial evidence.” YESCO 

v. Labor Comm’n, 2021 UT App 96, ¶ 13, 497 P.3d 839. “In 

reviewing for substantial evidence, we defer to the agency if there 

is a quantum and quality of relevant evidence that is adequate to 

convince a reasonable mind to support a conclusion.” Id.

(quotation simplified). And Employer bears the burden here: this 

court “will not disturb the Commission’s factual findings unless 

the party challenging the findings demonstrates that a finding is 

not supported by substantial evidence.” Danny’s Drywall v. Labor 

Comm’n, 2014 UT App 277, ¶ 11, 339 P.3d 624 (quotation 

simplified).

ANALYSIS

I. The Remand for a Second Medical Panel

¶25 We first address whether the Commission abused its 

discretion when it remanded the matter to the ALJ and requested 

that a second medical panel be appointed to further explain the 

medical causation behind West’s condition. Employer argues that 

the Commission abused its discretion because it had already 

concluded that—despite having the required expertise to 

formulate an opinion about West’s condition—the first medical 
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panel was not able to provide an opinion regarding the reasonable 

medical probability of West’s condition, and yet the Commission 

opted to send the matter back to be reassessed by a new medical 

panel. In response, West argues that the Commission did not 

abuse its discretion by appointing a second medical panel because 

that is a statutorily conferred option of which the Commission 

may take advantage in the exercise of its discretion. We are not 

persuaded by Employer’s position and conclude that the 

Commission was well within its discretion when it remanded the 

matter for the appointment of a second medical panel.

¶26 From the outset, it is helpful to discuss how an ALJ and the 

Commission are permitted—and sometimes required—to utilize 

medical panels. Section 34A-2-601(1)(a) of the Utah Code states 

that an ALJ may appoint a medical panel in a case involving 

“medical aspects.” See Utah Code Ann. § 34A-2-601(1)(a) 

(LexisNexis Supp. 2022). And Utah Administrative Code R602-2-2 

specifies that a medical panel must be appointed when there are 

“one or more significant medical issues . . . involved” such as 

“[c]onflicting medical opinions related to causation of the injury 

or disease.” Utah Admin. Code R602-2-2(a)(i); see also Graphic 

Packaging Int’l Inc. v. Labor Comm’n, 2021 UT App 82, ¶ 24 n.8, 495 

P.3d 228 (“The Commission’s discretion, as set forth in [Utah 

Code section 34A-2-601(1)(a)], may be constrained by 

administrative rule, which requires the Commission to appoint a 

medical panel in certain circumstances.”). Once a medical panel is 

appointed, its role is to “advise[] an administrative law judge with 

respect to the administrative law judge’s ultimate fact-finding 

responsibility.”14 Utah Code Ann. § 34A-2-601(1)(e)(ii)(B). An ALJ 

may then utilize the information and opinions provided by the 

14. To be sure, there is not a dispute in this case about whether the 

ALJ abused its discretion in appointing the first medical panel—

clearly both sides recognize that there were conflicting medical 

opinions that warranted having a medical panel, and the ALJ did 

exactly what was required at that point in the proceeding. Rather, 

Employer argues that the Commission abused its discretion when 

it requested that a second medical panel be consulted.
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medical panel to reach a decision regarding medical causation. 

See, e.g., Price River Coal Co. v. Industrial Comm’n, 731 P.2d 1079, 

1084 (Utah 1986) (“[T]he medical panel is only to take the facts as 

found by the administrative law judge and consider them in light 

of its medical expertise to assist the administrative law judge in 

deciding whether medical cause has been proven.”). Then, on 

review of the ALJ’s decision, the Commission “has fact-finding 

authority.” Sysco Corp. v. Labor Comm’n, 2021 UT App 127, ¶ 12, 

502 P.3d 1242 (quotation simplified). Although the Commission 

may not conduct a trial de novo, see Utah Code Ann. 

§ 34A-1-303(b) (LexisNexis 2019), if necessary, the Commission 

may “base its decision on” “written supplemental evidence” it 

requests, id. § 34A-1-303(4)(c).

¶27 It is also useful to consider Graphic Packaging International

Inc. v. Labor Commission, 2021 UT App 82, 495 P.3d 228, on which 

both parties rely to support their respective arguments. In Graphic, 

an ALJ appointed a medical panel to consider the medical 

condition of an injured worker. Id. ¶ 11. The medical panel took 

almost a year and a half to provide the ALJ with an initial report—

only after the ALJ repeatedly asked when the report would be 

completed—and then took over eight months to respond to 

follow-up requests from the ALJ. Id. ¶¶ 12–13. Additionally, the 

medical panel “appeared to not understand” the claimant’s 

injuries and provided a response to a question that was never 

presented by the ALJ on a matter that was not in dispute by other 

reviewing physicians. Id. ¶ 26. The ALJ appointed a second 

medical panel following the claimant’s objection to the first 

medical panel’s report based in part on the length of time it took 

the first medical panel to respond and “because the previous 

panel members had retired and were no longer available to 

provide clarification or answer the ALJ’s questions.” Id. ¶ 14 

(quotation simplified). Following the ALJ’s decision, the 

employer petitioned the Commission for review, arguing that the 

ALJ “continued to needlessly refer the claim back for new medical 

panels until a favorable medical panel result for [the claimant] 

was finally received.” Id. ¶ 18 (quotation simplified). The 

Commission rejected the employer’s argument and affirmed the 
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ALJ’s order, finding that the second medical panel’s 

determinations were “fully ‘supported by the evidence in the 

record’ and ‘the product of impartial, collegial, and expert 

review’” of the claimant’s medical history. Id.

¶28 On petition for judicial review, the employer argued, 

among other things, that the ALJ erred in appointing a second 

medical panel and that the Commission erred by affirming the 

ALJ’s decision. Id. ¶ 19. More specifically, the employer argued 

that the “governing statute does not authorize the appointment of 

a new medical panel after one has already been appointed.” Id.

¶ 24 (quotation simplified). In response, this court explained that 

the Commission has the discretion to refer a matter back to a new 

medical panel. Id. (”We do not read the statute as restrictively as 

the Company does, and we do not discern in its text a command 

that forbids appointment of more than one medical panel in a 

given case.”) (citing Utah Code Ann. § 34A-2-601(1)(a)). This court 

concluded that, in the context of the issues encountered with the 

first medical panel, the Commission “did not abuse its statutorily 

conferred discretion” by requesting that a second panel review 

the claimant’s case. See id. ¶ 36. 

¶29 Employer contends that this case is distinguishable from 

Graphic. In that case, the Commission remanded for the 

appointment of a second medical panel on the ground that the 

first medical panel lacked the required expertise. But here, the 

Commission concluded that the first medical panel was qualified 

but was nonetheless unable to provide an opinion regarding 

medical causation “within reasonable medical probability.”

Employer argues that “it is unclear how referring the case to a new 

medical panel would lead to further clarification” for the 

Commission. West also cites Graphic, arguing that, like the

Commission’s action there, appointment of a new medical panel 

was appropriate here because “there was a reasonable basis” 

behind the Commission’s decision, namely to get more 

clarification on the matter of causation. We agree with this latter 

reading and application of Graphic. 
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¶30 We do not read Graphic as defining the only reason for 

when a second medical panel could ever be appointed but 

rather as an example of a scenario in which the Commission 

could well determine that a second medical panel should be 

appointed. Furthermore, we learn from Graphic that what really 

matters is that the Commission must provide a “reasonable basis” 

for its decision to use its discretion to appoint a second 

medical panel. Id. ¶ 21 (quotation simplified). See id.

(explaining that, provided the Commission can articulate a 

reasonable basis, this court will not reverse the appointment of a 

medical panel). And that is exactly what happened here. 

The Commission expressed reticence about coming to a 

conclusion regarding causation that a medical panel—which the 

Commission duly noted had sufficient expertise—believed that it 

could not do to an appropriate level of certainty. In an effort to

obtain more clarity, the Commission opted to have another 

medical panel review the matter, which we cannot say was an 

inappropriate use of the Commission’s statutorily authorized 

discretion. We of course can contemplate a different situation 

where, for example, the Commission opted to arbitrarily send the 

case back requesting a second panel without providing any 

explanation for its decision or providing an illogical explanation.

There, we would likely have other things to say on the matter and 

would be concerned about the appropriateness of the 

appointment of a second medical panel. But that is not the case 

here.

¶31 In sum, we do not view the Commission’s course of 

action in this case as an abuse of its discretion. Having reviewed 

the case before it, and in light of the key question that the first 

medical panel left incompletely answered, it was well within the 

purview of the Commission to request that a second medical 

panel review the issue and provide further clarification and 

guidance to the ALJ in ferreting out and confirming the root cause 

of West’s condition.
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II. Reliance on the Second Medical Panel’s Report

¶32 If we conclude that the Commission did not abuse its 

discretion in directing that the ALJ appoint a second medical 

panel—which we do—Employer argues in the alternative that 

both the ALJ and the Commission erred when they overruled 

Employer’s objections regarding the second medical panel’s 

report. Employer’s attack is two-fold: (1) there was not sufficient 

evidence in the record to support that West’s occupational 

exposure caused his medical condition and (2) the medical panels, 

while both acknowledging the dearth of medical literature—or, in 

other words, scientific consensus—on the issue, still 

inappropriately “speculated” that West’s EP was caused by his 

occupational exposure.

¶33 In response, West explains that the first medical panel was 

mistaken when it concluded that it could not offer an opinion on 

“‘medical causation’ because there was not yet scientific 

consensus that isocyanates can cause EP.” Referencing State v. 

Rimmasch, 775 P.2d 388, 396–99 (Utah 1989), superseded by rule as 

stated in State v. Maestas, 2012 UT 46, 299 P.3d 892, West asserts 

that the issue of scientific consensus has been addressed by the 

Utah Supreme Court and that the rule in Utah has long been that 

“[m]edical opinions on new or ‘novel’ medical conditions do not 

require scientific consensus,” but rather require only that 

“medical opinions on novel conditions must be inherently 

reliable.” Therefore, West argues that it was reasonable for the 

Commission to remand the case to permit a second medical panel 

to remedy the first panel’s error in concluding that, due to a lack 

of scientific consensus, it could not reach a degree of reasonable 

medical probability regarding West’s condition.

¶34 We first address Employer’s argument regarding the 

notion that scientific consensus on a subject must be established 

before a medical panel can reach a definitive causation 

conclusion. We then discuss Employer’s argument that to reach a 

conclusion about medical causation, the record must contain 

sufficient evidence to support the conclusion.
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20220037-CA 18 2023 UT App 108

A. Scientific Consensus and Rule 702

¶35 There is argument from both sides about the notion of 

scientific consensus. Employer argues that because there was not 

sufficient scientific consensus in the medical community that 

exposure to isocyanates could cause a condition like West’s, as 

evidenced by the lack of medical literature regarding the matter, 

the medical panel could not offer an opinion to a reasonable 

degree of medical probability that West’s condition was a result 

of his workplace exposure. In response, West argues that, in fact, 

the medical panel did not need to find consensus in the scientific 

community because the standard has long since changed to allow 

for other avenues of reaching a conclusion regarding the medical 

probability that his condition was caused by his exposure, such as 

considering whether an opinion is based on application of 

specialized knowledge when analyzing and reviewing relevant 

facts or data pertinent to a case.

¶36 Under rule 702 of the Utah Rules of Evidence, it is true that 

consensus in the scientific community is one way to establish the 

requisite causation, but it is not the only way. See Utah R. Evid. 

702(c) (“The threshold showing required by [rule 702(b)] is 

satisfied if the underlying principles or methods, including the 

sufficiency of facts or data and the manner of their application to 

the facts of the case, are generally accepted by the relevant expert 

community.”).15 But aside from the general-acceptance avenue, 

15. We cannot let West’s position regarding “inherent reliability,” 

see supra ¶ 33, to escape comment. West is correct that general 

scientific consensus is not the only way to reach a sound causation 

conclusion. But “inherent reliability” is not—nor has it ever 

been—the standard required under rule 702(b) of the Utah Rules 

of Evidence. Instead, the “threshold” that is required is “only a 

basic foundational showing of indicia [of] reliability” for expert 

“testimony to be admissible.” See State v. Sheehan, 2012 UT App 

62, ¶ 22, 273 P.3d 417 (quoting Utah R. Evid. 702 advisory 

committee’s note).

(continued...)
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20220037-CA 19 2023 UT App 108

rule 702(b) provides that an expert can offer an opinion if “there 

is a threshold showing that the principles or methods that are 

underlying in the testimony (1) are reliable, (2) are based on 

sufficient facts or data, and (3) have been reliably applied to the 

facts.” Id. See also Swanigan v. Avenues Healthcare Inc., 2023 UT App 

2, ¶ 13, 524 P.3d 173 (explaining that a “proponent has made a 

threshold showing of reliability” if (a) “the principles underlying 

the expert’s testimony are reliable, based upon sufficient facts or 

data, and have been reliably applied to the facts of the case” or

(b) “by showing that the underlying principles or methods are 

generally accepted by the relevant expert community”) (quotation 

simplified); State v. Sheehan, 2012 UT App 62, ¶¶ 20–22, 273 P.3d 

417 (establishing that the “threshold showing” “requires only a 

basic foundational showing of indicia [of] reliability for the 

testimony to be admissible, not that the opinion is indisputably 

correct”) (emphases added) (quotation otherwise simplified). 

¶37 Here, while we assume, without deciding, that there is no 

medical consensus about whether isocyanates can be the medical 

cause of EP, the first panel did—in conjunction with its discussion 

West also cites State v. Rimmasch, 775 P.2d 388 (Utah 1989), 

superseded by rule as stated in State v. Maestas, 2012 UT 46, 299 P.3d 

892, in support of his argument against Employer’s assertion 

regarding scientific consensus. See supra ¶ 33. We reiterate that the 

standard as originally promulgated in Rimmasch—i.e., requiring 

in instances of “novel scientific principles or techniques” the 

imposition of “additional tests of admissibility” to “assure, as a 

threshold matter, that the evidence is sufficiently reliable,” see 

Rimmasch, 775 P.2d at 396—is no longer the standard required 

under rule 702. See Sheehan, 2012 UT App 62, ¶ 20 (explaining that 

rule 702 as amended in 2007 now allows “for admission of expert 

testimony upon a threshold showing that the principles or 

methods on which such knowledge is based are generally

accepted by the relevant legal expert community,” thereby 

replacing the “novel vs. non-novel dichotomy that ha[d] served 

as a central analytical tool in Utah’s Rule 702 jurisprudence”)

(quotation simplified).
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20220037-CA 20 2023 UT App 108

of its review of West’s medical history—reference a medical study 

that supported its conclusion. More specifically, the first medical 

panel explained that “while acknowledging this paucity of 

information [regarding the causation of EP because of its 

‘relatively new’ status], and agreeing that a reasonable degree of 

medical probability cannot be achieved given the state of clinical 

science, [it] none-the-less finds causation in this case to be strongly 

possible.” The second panel, while also noting the lack of 

literature supporting causation, provided an explanation of its 

review of the facts and data it had been provided. After reviewing 

the chemicals West was exposed to and his relevant medical 

history, which included a consideration of personal risk factors, 

the second panel reached the conclusion that his condition was 

wholly attributable to his occupational exposure. And both panels 

consisted of doctors who were well-versed in the relevant areas of 

medicine.

¶38 If there was any question whether the first medical panel 

appropriately relied on the single medical case report to support 

its causation conclusions, the matter was then solidly put to rest 

with the second medical panel’s report concluding that the 

requisite causation was supported by its review of the facts in 

West’s case coupled with its expertise in the fields of pulmonary 

and occupational diseases. Because scientific consensus was not 

the only basis on which either medical panel could opine on 

causation, it was not error for the ALJ and the Commission to rely 

on the second medical panel’s report to assist them in reaching 

their respective determinations. 

B. Sufficiency of Evidence and Medical Causation 

¶39 Quoting Wright v. Labor Commission, 2021 UT App 43, 489 

P.3d 211. Employer contends that to show medical causation, an 

injured worker must support the assertion that their occupation 

was the cause of the injury or disability with “evidence, opinion, 

or otherwise.” See id. ¶ 29 (quotation simplified). Employer argues 

that the record must contain sufficient evidence to show that the 

Commission’s causation determination was “based on a 
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reasonable medical probability rather than on a medical 

possibility.” See YESCO v. Labor Comm’n, 2021 UT App 96, ¶ 19, 

497 P.3d 839 (quotation simplified). Employer argues that the 

record establishes that only a medical possibility, rather than a 

probability, exists to support the notion that West’s exposure to the 

isocyanate is what caused his condition. We disagree that the 

record was lacking in information that the ALJ and the 

Commission could, and did, utilize in reaching their respective 

conclusions.

¶40 When deciding a matter regarding causation for purposes 

of compensation, “[i]t is not unusual for an administrative law 

judge and the Commission to adopt the findings of a medical 

panel.” Moyes ex rel. Moyes v. State, 699 P.2d 748, 753 (Utah 1985). 

“However, it is the prerogative and the duty of the Commission 

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.” 

Blair v. Labor Comm’n, 2011 UT App 248, ¶ 19, 262 P.3d 456 

(quotation simplified), cert. denied, 268 P.3d 192 (Utah 2011). For 

this court to “meaningfully review the findings of the 

Commission, the findings must be sufficiently detailed and 

include enough subsidiary facts to disclose the steps by which the 

ultimate conclusion on each factual issue was reached.” Id. ¶ 20 

(quotation simplified). 

¶41 Here, the record is not sparse. The record contains medical 

notes from the doctors that West visited prior to and following the 

claim being filed, including conflicting opinions regarding 

causation; MSDSs with information about the chemicals West was 

exposed to that the second panel had access to;16 and information 

about West’s symptoms before and after the industrial accident, 

16. The second medical panel was provided all the MSDSs, while 

the first panel noted it did not have the MSDS for the SB01 resin 

that spilled on West.
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20220037-CA 22 2023 UT App 108

as well as during his regular course of work involving training 

others how to use Employer’s painting systems.

¶42 Additionally, both the ALJ and the Commission provided 

detailed explanations as to why their review of the record with 

the support of the medical panel reports left them convinced that 

West’s repeated exposure to isocyanates through his regular 

course of employment was the cause of his condition. The ALJ and 

the Commission both referenced West’s work history and 

subsequent accident, the symptoms that ensued, the doctor 

reports from West’s visits prior to pursuing workers’

compensation benefits, and his working conditions. From their 

review, they drew clear, reasoned, and supported inferences and 

provided detailed explanations for their conclusions.

¶43 In sum, Employer has failed to show that the Commission’s 

findings were not supported by substantial evidence. See Danny’s 

Drywall v. Labor Comm’n, 2014 UT App 277, ¶ 11, 339 P.3d 624. We 

therefore decline to disturb the Commission’s conclusion that 

West’s occupation was the cause of his medical condition.

III. Attorney Fees

¶44 Finally, West requests that this court award attorney fees 

to him under rule 33 of the Utah Rules of Appellate Procedure. 

West has requested the award based on his claim that Employer’s 

request for judicial review was “frivolous because it was not 

grounded in fact, not warranted by existing law, and/or a good 

faith argument to extend that law.” He further claims that 

Employer’s petition for judicial review was a “delay” tactic to 

“needlessly increase [his] litigation costs.” Although Employer’s 

arguments were unsuccessful, they were not frivolous, and we 

therefore decline to award the requested attorney fees. Cf. Redd v. 

Hill, 2013 UT 35, ¶ 28, 304 P.3d 861 (stating that the imposition of 

attorney fees as a sanction for a frivolous appeal under rule 33 “is 

a serious matter and only to be used in egregious cases, lest the 

threat of such sanctions should chill litigants’ rights to appeal 

lower court decisions”).
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20220037-CA 23 2023 UT App 108

CONCLUSION

¶45 Employer has not persuaded us that the Commission 

abused its discretion when it remanded the matter with the 

direction that the ALJ appoint a second medical panel to 

determine the causation of West’s medical condition. 

Furthermore, Employer has not convinced us that the 

Commission erred when it concluded, in reliance on the opinion 

of the second medical panel, that West’s medical condition was 

caused by his industrial accident and occupational exposure to 

isocyanates. We therefore decline to disturb the Commission’s 

decision.