Benge v. Labor Commission

2019 UT App 164
THE UTAH COURT OF APPEALS
GERALD BENGE,
Petitioner,
v.
C ODY EKKER C ONSTRUCTION , A UTO O WNERS I NSURANCE
C OMPANY , AND LABOR C OMMISSION ,
Respondents.
Opinion
No. 20180366-CA
Filed October 10, 2019
Original Proceeding in this Court
Richard R. Burke, Attorney for Petitioner
Mark R. Sumsion and Lori L. Hansen, Attorneys for
Respondents Cody Ekker Construction and Auto
Owners Insurance Company
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 	Gerald Benge injured his knee at work and ultimately
underwent three surgeries. Due to a dispute regarding whether
the latter two surgeries were medically caused by the work
injury and whether any permanent impairment was attributable
to the workplace incident, Benge filed a workers’ compensation
claim. In making his claim, Benge tried to sweeten his arguments
by relying on Gunnison Sugar Co. v. Industrial Commission of Utah,
275 P. 777 (Utah 1929). However, the Utah Labor Commission
denied Benge’s claim. We decline to disturb the Commission’s
order.

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BACKGROUND1
The Work Injury and Three Surgeries
¶2 	In 2013, while working for Cody Ekker Construction
(Employer), Benge was operating an excavator on a trailer ramp.
When the ramp suddenly tilted, he quickly got out of the
excavator onto the trailer and then jumped down from the trailer
to the ground. When he landed, his right knee twisted, popped,
and caused him immediate pain. Benge went to the emergency
room and was diagnosed with a torn meniscus and a fracture of
his tibial plateau. Soon after, a doctor performed surgery (First
Surgery) in which he made small incisions, cleaned out dead and
damaged tissue, removed part of the meniscus, and shaved off
and reshaped part of the patella on Benge’s right knee.2 During
the First Surgery, the operating doctor noted “some balled up
tissue with some obvious partial tearing of the ACL . . . [which]
was calcified representing probable older type tissue from an
older pathologic type tear.” Benge was not happy with the
results of his treatment, however, so he requested a change of
doctors and began seeing Dr. Holmstrom.
¶3 	Over the next two years, Benge underwent two more
surgeries on his right knee. In January 2014, as pain in Benge’s
knee persisted and after discussing the details of his knee with
1. A party seeking review of an agency order “bears the burden
of demonstrating that the agency’s factual determinations are
not supported by substantial evidence and we state the facts and
all legitimate inferences drawn therefrom in the light most
favorable to the agency’s findings.” ABCO Enters. v. Utah State
Tax Comm'n, 2009 UT 36, ¶ 2 n.1, 211 P.3d 382 (cleaned up).
2. 	In 	medical 	terms, 	the 	doctor 	performed 	an 	arthroscopic
surgery 	with 	debridement, 	a 	partial 	meniscectomy, 	and 	a
chondroplasty of the patella.

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Dr. Holmstrom, Benge received a right knee ACL reconstruction
(Second 	Surgery). 	Then, 	in 	March 	2015, 	Dr. 	Holmstrom
performed 	a 	total 	knee 	replacement 	(Third 	Surgery). 	Dr.
Holmstrom opined that all Benge’s knee problems were causally
connected 	to 	the 	2013 	work 	injury. 	However, 	Employer’s
medical consultant, Dr. Green, evaluated Benge’s injuries and
partially disagreed with Dr. Holmstrom’s conclusion. Dr. Green
agreed that the injuries addressed in the First Surgery were
causally connected to the 2013 work injury, but he concluded
that 	the 	other 	knee 	problems 	addressed 	in 	the 	subsequent
surgeries were preexisting 	and 	unrelated to the 2013 work
injury.
The Administrative Adjudication
¶4 	Benge then filed a claim for permanent total disability
under 	the 	Utah 	Workers’ 	Compensation 	Act,3 	and 	an
administrative law judge (ALJ) held an evidentiary hearing.
During the hearing, Employer admitted that Benge sustained a
meniscus tear and tibial plateau fracture as a result of the 2013
incident—or in other words, Employer admitted that the First
Surgery 	was 	compensable 	by 	workers’ 	compensation. 	But
Employer argued that Benge’s ACL tear and conditions that led
to the Second Surgery and Third Surgery were not related to the
2013 work injury, and thus not compensable.
¶5 	Because of the doctors’ contradictory opinions, the ALJ
referred the medical issues to a medical panel (Panel).4 The Panel
3. 	See 	generally 	Utah 	Code 	Ann. 	§§ 	34A-2-101 	to 	-1005
(LexisNexis 2018).
4. Rule R602-2-2(A) of the Utah Administrative Code requires an
ALJ to utilize a medical panel where significant medical issues
and one of the enumerated situations of conflicting medical
opinions are involved. Clean Harbors Envtl. Services v. Labor
(continued…)

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concluded that Benge’s 2013 work injury did not medically cause
the injuries addressed in the Second Surgery and Third Surgery.
The Panel specifically reported that “neither the right tibial
plateau 	fracture 	nor 	the 	lateral 	meniscal 	tear 	impacted 	or
accelerated Mr. Benge’s other right knee condition in any degree.”
(Emphasis added.)5 The Panel also concluded that Benge’s 2013
work injury reached medical stability by December 15, 2013, and
did not result in permanent impairment.
¶6 	After reviewing the Panel’s reports, the ALJ adopted the
Panel’s medical conclusions. Benge argued, however, based on
Gunnison Sugar Co. v. Industrial Commission of Utah, 275 P. 777
(Utah 1929), that his knee problems after the First Surgery were
connected to the work-caused injuries, as a matter of law. The
(…continued)
Comm’n, 	2019 	UT 	App 	52, 	¶ 	18, 	440 	P.3d 	916. 	Here, 	Dr.
Holmstrom’s and Dr. Green’s medical opinions were in direct
conflict 	related 	to 	the 	causation 	of 	Benge’s 	knee 	injuries
addressed in his two subsequent surgeries.
5. The Panel visited the issue of medical causation three times.
The first time, the Panel found that Benge “sustained an acute
right knee injury, consisting of a lateral tibial plateau fracture
and 	contusion 	. 	. 	. 	[and] 	a 	lateral 	meniscal 	tear.” 	In 	a
supplemental report, the Panel clarified its findings by stating
that “[i]t is medically more probable than not that neither the
right 	tibial 	plateau 	fracture 	nor 	the 	lateral 	meniscal 	tear
significantly impacted or accelerated Mr. Benge’s other right
knee conditions.” Finally, due to an objection regarding the use
of 	the 	word 	“significantly,” 	the 	Panel 	issued 	a 	final
supplemental report in which it found that “neither the right
tibial plateau fracture nor the lateral meniscal tear impacted or
accelerated 	Mr. 	Benge’s 	other 	right 	knee 	condition 	in 	any
degree.”

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ALJ 	rejected Benge’s argument, 	and 	explained 	that 	Benge’s
injuries related to his First Surgery “did not impact or accelerate
[his] other knee conditions.” Additionally, the ALJ explained
that Benge’s “preexisting knee conditions and treatment at all
times based on the preponderance of the medical evidence and
medical opinions have existed independently from” the 2013
work injury. The ALJ further found that “the evidence show[ed]
that [Benge’s] primary injury was not aggravated by medical or
surgical 	treatment.” 	Benge 	also 	argued 	that 	Employer 	was
equitably 	estopped 	from 	denying 	compensability 	for 	the
subsequent surgeries, but the ALJ rejected this argument as well,
citing Olsen v. Industrial Commission of Utah, 776 P.2d 937 (Utah
Ct. App. 1989).6 Consequently, the ALJ denied Benge’s claim
regarding the Second Surgery, Third Surgery, and permanent
impairment.
¶7 	Benge then filed a motion for agency review, and the
Commission issued an order agreeing with the ALJ’s decision. In
its order, the Commission noted the disagreement between Dr.
Holmstrom’s and Dr. Green’s opinions as to the medical cause of
Benge’s injuries addressed in the Second Surgery and Third
Surgery. The Commission further acknowledged that the ALJ
adopted the Panel’s conclusion that Benge’s 2013 work injury
warranted the First Surgery but not the subsequent surgeries.
Moreover, the Commission specifically disagreed with Benge’s
argument that Gunnison Sugar applied to his situation. And the
Commission stated that “a preponderance of the evidence shows
the [2013] accident medically caused an injury that was separate
from other pathology in Mr. Benge’s right knee and unrelated to
the 	[First 	Surgery] 	he 	received.” 	Finally, 	the 	Commission
explained 	that 	additional 	evidence 	supported 	the 	Panel’s
finding, including Dr. Green’s opinion, MRI results, and the
operative report following the First Surgery.
6. See infra ¶ 21.

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¶8 	Benge petitions for judicial review.
ISSUES AND STANDARDS OF REVIEW
¶9 	There 	are 	two 	issues 	before 	this 	court.7 First, 	Benge
contends 	that 	the 	Commission 	erred 	in 	denying 	his 	claim
because his subsequent surgeries were caused by the 2013 work
injury, 	and 	he 	contends 	that 	under 	Gunnison 	Sugar 	Co. 	v.
Industrial Commission of Utah, 275 P. 777 (Utah 1929) all his
injuries are compensable, as a matter of law. “Because medical
causation is a question of fact,” e.g., Valdez v. Labor Comm’n, 2017
UT App 64, ¶ 10, 397 P.3d 753, we review the Commission’s
finding that Benge’s injuries addressed in the two subsequent
surgeries were not medically caused by the 2013 work injury for
substantial evidence, see Provo City v. Utah Labor Comm’n, 2015
UT 32, ¶ 8, 345 P.3d 1242. “Substantial evidence is that quantum
and quality of relevant evidence that is adequate to convince a
reasonable mind to support a conclusion.” Utah Chapter of the
Sierra Club v. Board of Oil, Gas, and Mining, 2012 UT 73, ¶ 11, 289
P.3d 558 (cleaned up). “In conducting a substantial evidence
review, we do not reweigh the evidence and independently
choose which inferences we find to be the most reasonable.”
Provo City, 2015 UT 32, ¶ 8 (cleaned up). “Instead, we defer to
[the 	Commission’s] 	findings 	because 	when 	reasonably
conflicting views arise, it is the [Commission’s] province to draw
inferences and resolve these conflicts.” Id. (cleaned up). But “we
review the law [the Commission] applied to these facts for
correctness.” Id. ¶ 17.
7. The Utah Administrative Procedures Act provides us the
authority to review administrative decisions. Utah Code Ann.
§ 63G-4-403(2)(a) (LexisNexis Supp. 2019); see also Utah Chapter of
the Sierra Club v. Air Quality Board, 2009 UT 76, ¶ 13, 226 P.3d
719.

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¶10 	Next, 	Benge 	contends 	that 	Employer 	is 	equitably
estopped from denying coverage for the Second Surgery and
Third Surgery because he detrimentally relied on Employer’s
approval and payment for the surgeries. “The issue of whether
equitable estoppel has been proven is a classic mixed question of
fact and law.” Iota, LLC v. Davco Mgmt. Co., 2012 UT App 218,
¶ 12, 284 P.3d 681 (cleaned up). “Because the equitable estoppel
inquiry 	is 	highly 	fact-sensitive, 	we 	properly 	grant 	the
[Commission’s] decision a fair degree of deference when we
review the mixed question of whether the requirements of the
law 	of 	estoppel 	have 	been 	satisfied 	in 	any 	given 	factual
situation.” Atlas Van Lines, Inc. v. Dinosaur Museum, 2016 UT App
30, ¶ 10, 368 P.3d 121 (cleaned up).
ANALYSIS
¶11 	Benge 	asserts 	that 	the 	Commission 	erred 	in 	its
conclusions regarding medical causation and equitable estoppel.
We disagree with him on both points.
I. Medical Causation
¶12 	Benge contends that the Commission erred in denying his
claim for workers’ compensation benefits in connection with the
two subsequent surgeries, asserting that both the Commission’s
finding of fact and application of the law were erroneous. Both
of these arguments are unpersuasive for the following reasons.
A. 	Substantial Evidence
¶13 	There 	is 	substantial 	evidence 	that 	Benge’s 	injuries
addressed 	by 	the 	Second 	Surgery 	and 	Third 	Surgery 	were
neither medically caused by the 2013 work injury nor affected at
all by the First Surgery. “[A] medical panel’s report alone can be
enough to conclude that a Commission’s determination was
supported by substantial evidence.” Valdez v. Labor Comm’n, 2017

Benge v. Labor Commission
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UT App 64, ¶ 22, 397 P.3d 753; see also Hutchings v. Labor Comm’n,
2016 UT App 160, ¶ 32, 378 P.3d 1273 (“[T]he medical panel’s
report alone provide[d] substantial evidence to support the
Commission’s medical causation determination.”). Such is the
case here.
¶14 	The Panel addressed all three of Benge’s surgeries and the
conditions underlying them, and it concluded that the 2013 work
injury did not cause or affect the other injuries addressed in the
subsequent two surgeries “in any degree.” Moreover, the ALJ
explained 	that 	the 	Panel’s 	findings 	indicated 	that 	the 	First
Surgery 	did 	not 	necessitate 	the 	subsequent 	two 	surgeries
because 	the 	conditions 	therein 	were 	preexisting 	and
independent. This alone is sufficient for us to conclude that the
Commission’s decision was supported by substantial evidence.
See, 	e.g., 	Valdez, 	2017 	UT 	App 	64, 	¶ 	22. 	However, 	the
Commission’s 	decision 	exceeded 	this 	standard 	because 	the
Commission identified further evidence to support the Panel’s
determinations, including Dr. Green’s opinion that was the same
as the Panel’s, MRI results from Benge’s knee, and the operative
report following the First Surgery in which the operating doctor
noted calcification on Benge’s partial ACL tear representing “an
older pathologic type tear.”
¶15 	Benge argues that we should order the Commission to
find that “Dr. Holmstrom connected his care to [Benge’s] work
injuries” and to “reverse the Commission’s wrongful denial.”
However, Dr. Holmstrom’s opinion is not dispositive. The key is
not 	whether 	Dr. 	Holmstrom 	opined 	that 	the 	injuries 	were
medically caused by the 2013 work injury or the First Surgery.
The key is what the Panel, and ultimately the Commission,
found 	to 	be 	the 	cause. 	And 	although 	Benge 	may 	have
“competing 	medical 	theories, 	the 	Commission’s 	conclusions
were certainly supported by substantial evidence,” which is
dispositive as to our review of a finding of fact. See Wallace v.
Labor Comm’n, 2019 UT App 121, ¶ 16 (cleaned up); see also Olsen
v. Industrial Comm’n of Utah, 776 P.2d 937, 940 (Utah Ct. App.

Benge v. Labor Commission
20180366-CA 	9 	2019 UT App 164
1989) (“We do not deem the Commission’s findings arbitrary
and capricious simply because the Commission adopted the
findings of the panel rather than those of the independent
physicians.” (cleaned up)). Accordingly, given the Panel’s report
and the additional evidence, we have no difficulty concluding
that the Commission’s finding of causation was supported by
substantial evidence.
B. 	Application of Law
¶16 	The Commission’s application of the law was correct. In
Allen v. Industrial Commission, 729 P.2d 15 (Utah 1986), our
supreme court set out a two-part test to determine whether work
injuries are compensable: The accident must be both the legal
cause and medical cause of the injury. Id. at 25–28. “Allen makes
clear that there must be a nexus between the accident and the
injury for which treatment is sought. Only medical expenses for
injuries resulting from an industrial accident are compensable.
Requiring a nexus between the accident and injury prevents an
employer from becoming a general insurer of his employees and
discourages fraudulent claims.” Petersen v. Labor Comm’n, 2016
UT App 222, ¶¶ 18, 20, 385 P.3d 759 (holding that because the
work 	accident 	“did 	not 	medically 	cause 	the 	condition 	that
required the [subsequent] surgeries, the surgeries were not”
compensable 	(cleaned 	up)). 	Here, 	the 	Commission 	properly
applied 	the 	Allen 	test 	to 	Benge’s 	injuries 	and 	surgeries 	in
denying his claim.
¶17 	Benge 	nevertheless 	argues 	that 	Gunnison 	Sugar 	Co 	v.
Industrial Commission of Utah, 275 P. 777 (Utah 1929), applies to
this case, but this argument misses the mark. In Gunnison Sugar,
an employee suffered a back injury at work and was treated by a
doctor, who later moved to another part of the state. Id. at 777.
The employee then visited another doctor for his back, but the
new doctor incorrectly diagnosed the employee and, in an effort
to treat the work-related back injury, advised him to have all his
teeth extracted, which the employee did through his dentist. Id.

Benge v. Labor Commission
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The employee brought a workers’ compensation claim and was
awarded costs for his troubles. Id. at 779. In approving the
commission’s award, our supreme court explained that “the
aggravated loss or condition of the employee so occasioned by
the negligence or unskillfulness of such physician cannot be said
to be due to an independent and intervening cause but must be
held attributable to the accident resulting in injury which as a
primary cause set in motion a train of events from which the
aggravated condition resulted.” Id. (emphasis added). Thus, in
Gunnison Sugar, the work injury was the direct cause of the
inappropriate and unfortunate removal of the employee’s teeth
because the teeth were removed in a misguided effort to treat the
original work-related injury. See id.
¶18 	Here, 	Benge’s 	situation 	is 	wholly 	different 	from 	the
employee’s in Gunnison Sugar because the Second Surgery and
Third Surgery were performed to treat conditions that were
found to be unrelated Benge’s work injury. As discussed above,
the Panel found that Benge’s 2013 work injury did not affect his
other conditions “in any degree.” Moreover, the ALJ explained
that 	the 	First 	Surgery 	did 	not 	necessitate 	the 	subsequent
surgeries 	because 	the 	injuries 	therein 	were 	preexisting 	and
independent. 	Finally, 	the 	Commission 	concluded 	that 	the
Second Surgery, Third Surgery, and their underlying injuries
were independent and unrelated to the 2013 work injury and the
First Surgery. Thus, the Commission’s conclusion was the exact
opposite from the one reached in Gunnison Sugar.
¶19 	Simply 	put, 	Benge’s 	reliance 	on 	Gunnison 	Sugar 	is
misplaced because it does not apply to the facts of this case.8 Cf.
8. 	Benge’s 	argument 	that 	Perchelli 	v. 	Utah 	State 	Industrial
Commission, 475 P.2d 835 (Utah 1970), applies to this case is
unpersuasive for the same reason: Perchelli and this case are
factually distinguishable. In Perchelli, the employee injured his
lower back, sneezed two years later and thereby reinjured his
(continued…)

Benge v. Labor Commission
20180366-CA 	11 	2019 UT App 164
Petersen, 2016 UT App 222, ¶¶ 19–20 (holding that because the
work 	accident 	“did 	not 	medically 	cause 	the 	condition 	that
required the [subsequent] surgeries, the surgeries were not”
compensable (cleaned up)). Therefore, the Commission correctly
applied the law, and we decline to disturb its decision.
II. Equitable Estoppel
¶20 	Employer 	was 	not 	equitably 	estopped 	from 	denying
compensability for Benge’s two subsequent surgeries. To prevail
on a claim of equitable estoppel, a party must establish three
elements:
(1) a statement, admission, act, or failure to act by
one party inconsistent with a claim later asserted;
(2) reasonable action or inaction by the other party
taken or not taken on the basis of the first party’s
statement, admission, act or failure to act; and
(3) injury to the second party that would result
from 	allowing 	the 	first 	party 	to 	contradict 	or
repudiate such statement, admission, act, or failure
to act.
Howick v. Salt Lake City Corp., 2018 UT 20, ¶ 14, 424 P.3d 841.
(cleaned up).
¶21 	However, “the mere fact that an employer pays benefits
initially 	without 	contesting 	liability 	does 	not 	mean 	it 	is
thereafter, as a matter of law, barred from contesting liability.”
Olsen v. Industrial Comm’n of Utah, 776 P.2d 937, 940 (Utah Ct.
App. 1989). Indeed, our supreme court has long stated that “in
(…continued)
back, and our supreme court held that the denial of his claim
was erroneous. Id. at 836–38. Conversely, the findings here were
that the injuries were preexisting, independent, and unrelated.

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the absence of prejudice to the employee or of facts giving rise to
estoppel, an insurance carrier may, notwithstanding voluntary
payment 	of 	compensation, 	. 	. 	. 	urge 	the 	defense 	that 	the
employee did not meet with an accident . . . or that there was no
causal connection between the injury and disability.” Harding v.
Industrial Comm’n of Utah, 28 P.2d 182, 184 (Utah 1934). A rule to
the contrary would result in more employers’ contesting claims
at the outset to avoid being estopped from raising arguments
later, which would be problematic for employees, employers,
and insurance carriers. Olsen, 776 P.2d at 941 (discussing the
same policy concern).
¶22 	Benge argues that Employer is “estopped from denying
liability for [his] medical care and secondary injuries because
[he] 	relied 	on 	[Employer’s] 	irreversible 	medical 	care 	to 	his
prejudice.” The thrust of Benge’s argument is that his surgeries
are irreversible. His argument is unpersuasive because it does
not establish the second and third equitable estoppel elements—
reasonable reliance and detrimental injury. See Howick, 2018 UT
20, ¶ 14.
¶23 	Benge has failed to prove that, in making the decision to
undergo the Second Surgery and Third Surgery, he reasonably
relied—or even relied at all—on Employer’s payment for those
surgeries. Benge had the surgeries after experiencing pain and
discussing the details with Dr. Holmstrom. Thus, regardless of
Employer’s approval and payment, Benge and Dr. Holmstrom
concluded that he needed the surgeries, and there is no evidence
that Benge changed his position based on Employer’s approval
or payment for them. For the same reason, Benge has failed to
prove that Employer’s payment and approval of the surgeries
were detrimental to him. Again, he needed the surgeries. Simply
because 	the 	surgeries 	are 	irreversible 	does 	not 	make 	them
detrimental. 	The 	fact 	that 	Employer 	initially 	paid 	for 	the
surgeries was not detrimental to Benge; rather, it was in line
with the public policy discussed above. See Olsen, 776 P.2d at
941. Therefore, despite Benge’s bare assertions that Employer

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should be estopped from denying compensability, he has not
persuaded us that such is the case here.
CONCLUSION
¶24 	We decline to disturb the Commission’s order because it
was adequately supported by substantial evidence, correctly
applied the law, and properly denied Benge’s equitable estoppel
claim.