2019 UT App 52

THE UTAH COURT OF APPEALS

CLEAN HARBORS ENVIRONMENTAL SERVICES AND 

AMERICAN ZURICH INSURANCE CO.,

Petitioners,

v.

LABOR COMMISSION AND DAVID FOX,

Respondents.

Opinion

No. 20180448-CA

Filed April 4, 2019

Original Proceeding in this Court

Mark D. Dean and Kristy L. Bertelsen, Attorneys

for Petitioners

Scott F. Squire, Attorney for Respondent David Fox

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY

concurred.

HARRIS, Judge:

¶1 In administrative proceedings before the Labor 

Commission of Utah (the Commission), David Fox was awarded 

permanent total disability benefits due to a workplace injury. 

His employer, Clean Harbors Environmental Services (Clean 

Harbors), and its insurer, American Zurich Insurance Company, 

seek judicial review of the Commission’s decision, and 

specifically challenge its refusal to exclude certain medical 

evidence. We conclude that the Commission did not abuse its 

discretion in considering the applicable medical evidence, and

we therefore decline to disturb the Commission’s ultimate 

decision to award benefits to Fox.
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BACKGROUND

¶2 One day in August 2012, Fox’s duties as an employee of 

Clean Harbors required him to clean hazardous material out of a 

large tank using a high-pressure hose. Even though Fox was 

dressed in a “haz-mat” suit and was wearing three pairs of 

gloves, he injured his right hand when he inadvertently turned

on the hose while his hand was in front of the nozzle. The water, 

pressurized to 3,500 pounds per square inch, blasted into the 

palm of Fox’s hand and base of his wrist. Fox was immediately 

taken to the hospital where a doctor (Doctor 1) performed 

surgery on him that night.

¶3 After surgery, Fox began physical therapy but, despite 

some improvement, over the next few months he continued to 

experience pain, numbness, and hypersensitivity to temperature 

in his hand, which prevented him from returning to work. In 

January 2014, Doctor 1 performed a second surgery on Fox, this 

time for carpal tunnel release, neuroma removal, and radial 

nerve repair. A few weeks later, at a post-operative follow-up 

appointment, Doctor 1 observed that Fox had “pain radiating up 

into the axilla, cold intolerance and swelling with increased 

hairiness,” and eventually diagnosed Fox with Complex 

Regional Pain Syndrome (CRPS). Fox sought a second opinion 

from another doctor (Doctor 2), who also diagnosed Fox with 

CRPS, and opined that Fox’s “CRPS is an extremely 

straightforward and classic example of CRPS—as 

straightforward of a case as [she had] ever seen.” A few months 

later, Fox began treatment with yet another doctor (Doctor 3), 

who in September 2014 also diagnosed Fox with CRPS.

¶4 In an effort to ameliorate Fox’s symptoms, Doctor 2 

referred him to physical and occupational therapy, which he 

attended. In addition, Doctor 2 implanted a spinal cord 

stimulator into Fox’s back in an attempt to help alleviate some of 

his pain. Although the implant was initially successful, after a 
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number of months it became infected and had to be removed 

and eventually re-implanted.

¶5 Over a year later, in December 2015, Clean Harbors sent 

Fox to a fourth doctor (Doctor 4). Although Doctor 4 concluded 

that, based on his injury, Fox qualified for either a partial upperextremity or whole-person impairment rating, Doctor 4 also 

concluded that Fox did not have CRPS. In making her diagnosis, 

Doctor 4 relied upon the American Medical Association Guides, 

5th Edition (the 2000 AMA Guides), a 2000 publication that 

contains standards for, among other things, the diagnosis of 

CRPS. Pursuant to those standards, an individual can be 

clinically diagnosed with CRPS only if he or she exhibits at least 

eight out of eleven specific objective symptoms, and Doctor 4 

concluded that Fox exhibited only three of these symptoms.

¶6 In March 2016, Fox filed a permanent-total-disability 

claim for workers’ compensation benefits, asserting that he had 

sustained injuries to his right hand while working for Clean 

Harbors. The matter proceeded to an evidentiary hearing before 

an administrative law judge (ALJ), and at that hearing both 

parties agreed that Fox’s hand had been injured in the workplace

accident, but they disagreed about the current condition of Fox’s 

hand, specifically about his diagnosis of CRPS. In support of his 

claim, Fox submitted the medical opinions of Doctor 1, Doctor 2, 

and Doctor 3, all of whom had diagnosed him with CRPS. 

Conversely, Clean Harbors submitted Doctor 4’s medical 

opinion that Fox did not have CRPS. After the hearing, the ALJ

determined, among other things, that there was “a medical 

controversy regarding medical causation, functional restrictions, 

date of medical stability and recommended medical care,” and

ordered that these issues be referred to an impartial two-person 

medical panel (Panel) for consideration.

¶7 The Panel was comprised of two medical doctors, one a 

specialist in occupational medicine and the other a specialist in 
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pain management. After some legal wrangling that required the 

Panel to issue an amended report, it ultimately concluded that 

Fox has CRPS. To reach that diagnosis, the Panel did not use the 

2000 AMA Guides or Utah’s 2006 Impairment Guides (the 2006 

Utah Guides), which refer to the 2000 AMA Guides; instead, the 

Panel used the more recent “Budapest Criteria” established by 

the International Association for the Study of Pain, which the 

ALJ found were “the most widely accepted diagnostic criteria 

among pain specialists.” Under those criteria, an individual has 

CRPS if they exhibit symptoms in three out of four categories, 

and the Panel concluded that Fox’s symptoms met those criteria.

It stated that both the available medical records and its

examination of Fox “strongly support[] the diagnosis of CRPS.” 

The Panel concluded that Fox’s condition—CRPS—was 

medically caused by the workplace accident.

¶8 Soon after the Panel issued its final report, Clean Harbors

filed an objection, arguing that the ALJ should not adopt the 

report because the Panel did not use the diagnostic criteria found 

in the 2000 AMA Guides or the 2006 Utah Guides, which Clean 

Harbors maintained was required by a state regulatory

provision contained in rule R612-300-9(A) of the Utah 

Administrative Code (the Rule). The ALJ rejected this argument, 

and concluded that the Rule required use of the 2000 AMA 

Guides only when “assessing an individual’s impairment 

rating,” something that was not at issue in this case. After 

refusing to exclude the Panel’s report, the ALJ ultimately 

concluded that, “[b]ased upon a preponderance of the evidence,” 

which evidence included not only the Panel’s report but also the 

opinions of the other doctors, Fox did indeed suffer from CRPS,

which was medically caused by the accident, and that Fox was 

therefore entitled to an award of permanent total disability 

compensation.

¶9 Clean Harbors appealed the ALJ’s decision to the 

Commission, arguing that the ALJ erred in considering the 
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Panel’s report, and asserting that the ALJ’s Order should be 

reversed and a new medical panel convened to review the 

matter under the correct standard. After review, the Commission 

agreed with the ALJ that the Rule did not require exclusion of 

the Panel’s report in this case, because “the [P]anel’s diagnosis of 

CRPS was not rendered as part of an impairment rating but was 

the product of its impartial and expert review of [Fox’s] 

condition and his medical history.” The Commission stated that 

the Panel’s report “represents a thorough and well-reasoned 

review of the medical aspects of [Fox’s] case,” and concluded 

that it was “persuaded by the [P]anel’s conclusions because they 

are supported by the evidence in the record, including the 

opinions” of some of the other doctors.

ISSUE AND STANDARD OF REVIEW

¶10 Clean Harbors now seeks judicial review of the 

Commission’s determination, and specifically asks us to consider 

whether the Commission correctly determined that the Panel’s 

report was admissible.1 “We review the Commission’s refusal to 

exclude a medical panel report or remand for an objection 

hearing under an abuse of discretion standard, providing relief 

only if a reasonable basis for that decision is not apparent from 

 

1. In its brief, Clean Harbors phrased the issue in a slightly 

different manner, stating that the issue is whether the 

Commission erred “in determining that medical causation was 

met.” At oral argument, however, it clarified that it was not 

intending to bring a sufficiency-of-the-evidence challenge to the 

Commission’s ultimate determination of medical causation, a 

wise decision given that there was plenty of medical evidence—

including but not limited to the Panel’s report—to support a 

finding of medical causation in this case.
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the record.” Bade-Brown v. Labor Comm’n, 2016 UT App 65, ¶ 8, 

372 P.3d 44 (quotation simplified).

ANALYSIS

¶11 Clean Harbors’s argument is premised entirely upon the 

application of the Rule. See Utah Admin. Code R612-300-9. Clean 

Harbors asserts that the Rule requires that any medical 

evaluation of whether Fox has CRPS be governed by the 2000 

AMA Guides which, as noted, list eleven symptoms that are 

known to be associated with CRPS, and state that “[a]t least 

eight of these findings must be present concurrently for a 

diagnosis of CRPS.” See Am. Med. Ass’n, Guides to the Evaluation 

of Permanent Impairment 496 (Linda Cocchiarella & Gunnar B.J. 

Andersson eds., 5th ed. 2000). No doctor has opined that Fox 

ever concurrently exhibited eight of the eleven symptoms listed 

in the 2000 AMA Guides and, for this reason, Clean Harbors 

takes the position that Fox was inaccurately diagnosed with 

CRPS, and that the Commission should not have considered the 

Panel’s report.

¶12 For his part, Fox maintains that the CRPS diagnostic 

criteria set forth in the 2000 AMA Guides have been superseded 

in the medical literature by the “Budapest Criteria,” which 

Doctor 2 stated were adopted in 2010 by the International 

Association for the Study of Pain. Fox asserts that the medical 

professionals—including the medical panel—who examined him 

and diagnosed him with CRPS were following the most current 

standard of medical care, which requires that a patient exhibit 

symptoms in three of four areas, diagnostic criteria that he 

clearly meets. Further, he asserts that the Rule upon which Clean 

Harbors relies is inapplicable here, because that Rule is, by its 

terms, limited to cases in which impairment ratings are at issue, 

and notes that no such rating was at issue in this case. In our 

view, Fox has the better of the arguments.
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¶13 “We review administrative rules in the same manner as 

statutes, focusing first on the plain language of the rule.” Utah 

Chapter of the Sierra Club v. Air Quality Board, 2009 UT 76, ¶ 13, 

226 P.3d 719. “In our inquiry, we seek to give effect to the intent 

of the body that promulgated the rule.” Burns v. Boyden, 2006 UT 

14, ¶ 19, 133 P.3d 370. But “an agency’s rules must be consistent 

with its governing statutes,” and we therefore look to both the 

rules and the governing statutes and construe the rule “together 

with the statute to make, if possible, an effectual piece of 

legislation in harmony with common sense and sound reason.” 

Newspaper Agency Corp. v. Department of Workforce Services, 1999 

UT App 222, ¶ 12, 984 P.2d 399 (quotation simplified). 

Accordingly, as we do with questions of statutory interpretation, 

we begin our evaluation of the Rule with an examination of the 

Rule’s text. See Sierra Club, 2009 UT 76, ¶¶ 37–38 (looking to the 

“plain language” of a regulatory provision); see also Craig v. 

Provo City, 2016 UT 40, ¶ 33, 389 P.3d 423 (interpreting a statute 

beginning with its text).

¶14 According to its title,2 the Rule governs “Permanent 

Impairment Ratings,” and its text instructs tribunals, when 

“rat[ing] a permanent impairment,” to first consult Utah Code 

section 34A-2-412, which contains a list of some permanent 

impairment ratings. See Utah Admin. Code R612-300-9(A). If 

section 34A-2-412 does not provide an impairment rating for the 

 

2. We recognize that “the title of a statute is not part of the text of 

a statute, and absent ambiguity, it is generally not used to 

determine a statute’s intent.” Blaisdell v. Dentrix Dental Sys., Inc., 

2012 UT 37, ¶ 10, 284 P.3d 616 (quotation simplified). However, 

the title of a statute “is persuasive and can aid in ascertaining the 

statute’s correct interpretation and application.” Id. (quotation 

simplified). Although we do not find the text of the Rule 

ambiguous, we mention the title here because it is entirely 

consistent with the plain meaning of the text. 
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condition at issue, then the Rule instructs tribunals to look next 

to the 2006 Utah Guides “to rate a permanent impairment.” Id.

(stating that the 2006 Utah Guides “are to be used to rate a 

permanent impairment not expressly listed in Section 34A-2-

412”). Finally, if the 2006 Utah Guides fail to supply the answer, 

the Rule instructs tribunals that “impairment ratings are to be 

established according to the” 2000 AMA Guides. Id. R612-300-

9(B). Fox correctly points out that the Rule, by its explicit terms, 

is limited in its application to proceedings establishing 

“impairment ratings.” Nothing in the Rule indicates any 

application to proceedings not involving the establishment of an 

impairment rating, and we are reluctant to read such language 

into the Rule, not only because such a reading would be contrary 

to plain language principles of interpretation, see I.M.L. v. State, 

2002 UT 110, ¶ 25, 61 P.3d 1038, but also because workers’ 

compensation statutes and regulations are to be construed 

“liberally in favor of finding employee coverage,” Olsen v. 

Samuel McIntyre Inv. Co., 956 P.2d 257, 260 (Utah 1998); see also 

Newspaper Agency Corp., 1999 UT App 222, ¶ 12 (stating that “an 

agency’s rules must be consistent with its governing statutes,”

and “rules made in the exercise of a power delegated by the 

statute should be construed together with the statute to make, if 

possible, an effectual piece of legislation in harmony with 

common sense and sound reason” (quotation simplified)).

¶15 The proceeding before the ALJ and the Commission was 

not a proceeding to establish an impairment rating. When Clean 

Harbors argued, to the Commission, that the Rule required 

application of the 2000 AMA Guides in this case, the 

Commission rejected the argument, noting that it was “unaware 

of any precedent for using [the 2000 AMA Guides] to reject a 

medical panel’s general diagnosis,” and that “the panel’s 

diagnosis of CRPS was not rendered as part of an impairment 

rating but was the product of its impartial and expert review of 

Mr. Fox’s condition and his medical history.” The Commission 

succinctly concluded that “the medical panel was not required to 
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apply the standards contained in the impairment guides in order 

to assess Mr. Fox with CRPS as a result of the work accident.”

¶16 Clean Harbors resists this conclusion, and the limiting 

nature of the plain language of the Rule, by first asserting that 

the 2006 Utah Guides and the 2000 AMA Guides have “been 

adopted by the Commission generally for diagnostic criteria.” 

Although it cites no authority to support this proposition, Clean 

Harbors reasons that the Commission should, for the sake of 

consistency, apply the same standard to both impairment ratings 

and diagnostic conclusions. We reject this argument because, 

while consistency may be a laudable goal in the abstract, it does 

not give us license to ignore the plain language of the Rule. And 

the Rule by its express terms is limited in its application to 

proceedings in which the establishment of an impairment rating 

is sought.

3

 

3. Given the nature of this case, neither party has occasion to 

challenge the Rule’s mandate—in 2019—that nineteen-year-old 

diagnostic standards be applied to Labor Commission cases that 

do involve the establishment of a permanent impairment rating. 

While there may be some areas of medicine in which not much 

has changed in two decades from a diagnostic standpoint—after 

all, a broken arm is a broken arm—we pause to wonder about 

the wisdom of a state administrative agency attempting to tell 

medical professionals how to diagnose medical conditions at all, 

let alone mandating the use of date-anchored and therefore 

potentially-outdated diagnostic criteria across the medical 

spectrum. In this case, three doctors plus a medical panel 

definitively diagnosed Fox with CRPS, using diagnostic criteria 

they deemed to be consistent with current medical science. One 

of those doctors—Doctor 2—seemed especially exercised about 

potentially being told by administrative rulemakers how to 

diagnose her patients, and included the following extraordinary 

(continued...)
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20180448-CA 10 2019 UT App 52

 

(...continued)

comments in a progress note in her medical record of one of 

Fox’s visits:

In reviewing [the 2006 Utah Guides] it does not 

appear that significant effort or expertise was 

expended in developing these guidelines, not the 

least because the name of the diagnosis is incorrect in 

multiple locations . . . . The “extensive review” cited 

by Barth is a 14-year-old opinion article published 

in the AMA Newsletter. . . . Additionally the 

comments on the “overlap of the diagnosis of 

CRPS and the Pain Disorders as listed under the 

somatoform disorders” [are] inappropriate in 

implying that CRPS is psychogenic or that patients 

with CRPS do not have a “legitimate” medical 

condition—rather there are very specific, objective, 

diagnostic findings and criteria for CRPS. Taken as 

a whole this Guide appears unscientific and rather 

prejudiced against patients with CRPS.

. . . .

Additionally the recommendation in the [2000 

AMA Guides] to have eight (!) signs of CRPS 

present at the time of examination is bizarre.

. . . .

There is an utter absence of evidence to support 

[the 2000 AMA Guides’] list of symptoms and a 

requirement of 8 of them to be present at the time 

of evaluation as somehow confirming the diagnosis 

of CRPS . . . . I can only surmise that this list comes 

from very old, very outdated information. In 2010 

the International Association for the Study of Pain 

(IASP) published updated diagnostic criteria for 

[CRPS]—the so-called Budapest Criteria. These 

criteria have been validated with a sensitivity of 

(continued...)
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20180448-CA 11 2019 UT App 52

¶17 Second, Clean Harbors points to a line in the 2006 Utah 

Guides, wherein it is “recommend[ed] that for the diagnosis of 

CRPS to be given, it must first meet the criteria as described in 

the [2000 AMA Guides].” Utah Labor Comm’n, Utah Labor 

Commission’s Supplemental 2006 Impairment Rating Guides § 2.1(a)

(Alan L. Colledge ed., 2006). But a mere “recommendation” by 

the committee that compiled the 2006 Utah Guides cannot 

 

(...continued)

99% and specificity of 79%. They are considered 

the definitive diagnostic criteria and should be the 

ONLY criteria used to diagnose CRPS.

If these comments are at all representative of the medical 

community’s collective feeling about the Rule, it might be time 

for its reexamination. In any event, we leave for another day the 

question of whether, in a case that actually involves 

establishment of an impairment rating, the Rule’s apparent 

limitation on recovery—where current medical science concludes 

that injury is present, but the Rule compels a contrary conclusion 

by mandating reliance on outdated diagnostic standards—would 

be inconsistent with statutory mandates that injured workers be 

compensated for medical conditions caused by workplace 

injuries, see Utah Code Ann. § 34A-2-401(1) (LexisNexis 2015) 

(stating that workers injured in a workplace accident “shall be 

paid . . . compensation for [the] loss sustained”), and that the 

Commission adopt scientifically sound protocols, see id. § 34A-2-

407.5 (stating that the Commission may adopt “reasonable health 

care treatment protocols, that include determinations of medical 

necessity, and medical treatment and quality care guidelines that 

are: (a) scientifically based; (b) peer reviewed; and (c) consistent 

with any general standards for health care treatment protocols 

that the commission establishes by rule”), as well as with the 

longstanding principle that workers’ compensation statutes be 

construed “liberally in favor of finding employee coverage,” see

Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 260 (Utah 1998).
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20180448-CA 12 2019 UT App 52

eclipse the plain language of the applicable Rule. Indeed, as 

noted, the Rule does not require the use of the 2000 AMA Guides 

for general diagnostic purposes, and Clean Harbors provides no 

other authority for the proposition that such a recommendation 

is entitled to binding effect on the Commission.

¶18 Having concluded that the Rule does not mandate 

exclusion of the Panel’s report, we next examine whether there 

was any other basis on which the Panel’s report should have 

been excluded. In Utah, workers injured by an industrial 

“accident arising out of and in the course of” their employment 

are entitled to workers’ compensation benefits. Utah Code Ann. 

§ 34A-2-401(1) (LexisNexis 2015). This statute requires injured 

workers to prove, among other things, medical causation, 

meaning that “the stress, strain, or exertion required by his or 

her occupation led to the resulting injury or disability.” Cook v. 

Labor Comm’n, 2013 UT App 286, ¶ 12, 317 P.3d 464 (quotation 

simplified). When considering whether to award workers’ 

compensation benefits, an ALJ must refer “significant medical 

issues,” such as “[c]onflicting medical opinions related to 

causation of the injury or disease,” to an independent medical 

panel. Utah Admin. Code R602-2-2(A). The panel must then 

evaluate the medical evidence and complete a report advising 

the ALJ as to the medical issues, see Utah Code Ann. § 34A-2-601, 

which report the ALJ has “discretion to adopt or reject . . . on the 

basis of the evidence developed in the case,” Foye v. Labor 

Comm’n, 2018 UT App 124, ¶ 23, 428 P.3d 26.

¶19 Under applicable statutes, there are “three potential 

scenarios in which a medical panel report can be admitted into 

evidence.” Johnston v. Labor Comm’n, 2013 UT App 179, ¶ 26, 307 

P.3d 615 (citing Utah Code Ann. § 34A-2-601). “The first is where 

no objection to the medical report is made and the report is 

admitted into evidence.” Bade-Brown v. Labor Comm’n, 2016 UT 

App 65, ¶ 10, 372 P.3d 44 (quotation simplified). “The second 

occurs when an objection to the medical panel report is timely 
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filed and the [ALJ] convenes a hearing on the objection,” after 

which the report may be considered as evidence only if it is 

“sustained by the testimony admitted.” Id. (quotation 

simplified). The third, although not directly addressed in the 

statute, occurs “when an objection to the report is timely filed 

but the [ALJ] elects not to hold an objection hearing.” Id. 

(quotation simplified). In this scenario, the ALJ’s decision is 

proper if she “properly exercised her discretion in denying a 

hearing” and if the objection to the medical panel report was not 

well taken. Id. (quotation simplified).

¶20 In this case, the ALJ did not abuse her discretion in 

denying a hearing, because Clean Harbors’s sole objection to the 

medical panel report was not well taken. Although Clean 

Harbors objected to the admission of the Panel’s report, that 

objection was based entirely upon its argument regarding 

application of the Rule, which the ALJ properly rejected for the

reasons we have articulated above. Thus, we perceive no abuse 

of discretion on the part of the the ALJ both in denying Clean 

Harbor’s request for a hearing and in overruling its objection to 

the Panel’s report, and no abuse of discretion by the Commission

in considering the Panel’s report. 

¶21 The task facing the Commission in this case was to 

determine whether Fox’s accident resulted in CRPS. To qualify 

for compensation, Fox was required to show that his accident 

was both the legal and medical cause of his injury. See Hutchings 

v. Labor Comm’n, 2016 UT App 160, ¶ 16, 378 P.3d 1273. “Medical 

causation is fundamentally a factual determination.” Id. ¶ 23. 

And the purpose of a medical panel report is to “evaluate [the]

medical evidence and advise an [ALJ] with respect to the [ALJ’s]

ultimate fact-finding responsibility.” Id. (quotation simplified).

However, the Commission is not required to adopt the findings 

of a medical panel’s report “if other substantial conflicting 

evidence in the case supports a contrary finding.” Utah Code 

Ann. § 34A-2-601(2)(e)(ii). Indeed, it is ultimately “the 
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prerogative and the duty of the Commission” to consider both 

the panel’s report and “all of the other evidence” when deciding 

causation. Bade-Brown, 2016 UT App 65, ¶ 13 (quotation 

simplified).

¶22 Here, the Commission examined the Panel’s report and 

determined that it was proper to adopt its findings. The Panel in 

this case was comprised of two qualified physicians who 

examined Fox and properly considered the reports of his 

examining physicians in light of “the most widely accepted 

diagnostic criteria among pain specialists.” Its conclusion that

Fox suffered CRPS as a result of the accident was well-reasoned 

and highly probative. We perceive no reason why the 

Commission should not have considered and adopted the 

Panel’s report.

CONCLUSION

¶23 While the Rule might—perhaps unwisely—require 

medical professionals to utilize outdated diagnostic standards 

when establishing an impairment rating, the Rule by its terms 

applies only to proceedings to establish a permanent impairment 

rating. Such a rating was not at issue in this case, and we decline 

Clean Harbors’s invitation to read into the Rule a broader 

requirement that might prevent medical professionals, when 

diagnosing their patients outside the context of establishing an 

impairment rating, from utilizing current medical diagnostic 

standards. Accordingly, the Commission did not err by 

considering the Panel’s report. We therefore decline to disturb its

conclusions.