BASF Corp. v. Labor Comm'n

537 P.3d 291

BASF CORPORATION and Indemnity Insurance Company, Petitioners,

v.LABOR COMMISSION and Bradley West, Respondents.

No. 20220037-CA

Court of Appeals of Utah.

Filed September 21, 2023

Brad J. Miller, Greenwood Village, CO, Attorney for Petitioners

Richard R. Burke, Sandy, Attorney for Respondent Bradley West

Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.

Opinion

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 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."

¶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 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 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 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 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 of occupational asthma," and highlighted that many physicians believe that isocyanates can cause conditions related to EP. The medical panel...