Cook v. Labor Commission, et al.

2013 UT App 286
_________________________________________________________
THE UTAH COURT OF APPEALS
TYSHA R. COOK AND TRISTAN RITCHIE,
Petitioners,
v.
LABOR COMMISSION, ZIONS BANK CORPORATION, AND
WORKERS COMPENSATION FUND,
Respondents.
Opinion
No. 20111030-CA
Filed November 29, 2013
Original Proceeding in this Court
Roger H. Hoole and David W. Parker, Attorneys
for Petitioners
Alan L. Hennebold, Attorney for Respondent
Labor Commission
Eugene C. Miller Jr., Attorney for Respondents
Zions Bank Corporation and Workers
Compensation Fund
JUDGE MICHELE M. CHRISTIANSEN authored this
Opinion, in which JUDGES GREGORY K. ORME and
CAROLYN B. MCHUGH concurred.
CHRISTIANSEN, Judge:
¶1 Petitioners Tysha R. Cook and Tristan Ritchie seek review of
a final order entered by the Labor Commission Appeals Board
denying their claims for compensation based upon the Utah
Workers Compensation Act and the Utah Occupational Disease
Act. We decline to disturb the Appeals Board’s decision.

Cook v. Labor Commission
1. Prior to Cook’s death, Cook sued the Bank for breach of contract
and breach of the implied covenant of good faith and fair dealing.
(continued...)
20111030-CA 2 2013 UT App 286
BACKGROUND
¶2 In late 1993, Gina Cook was an employee working in the
data processing center of Zions Bank (the Bank). Cook’s
department became very busy because the Bank was converting to
a new computer system and simultaneously undergoing a merger
with another bank. The combination of these events created a
heavy workload that required Cook to work overtime hours
starting February through May 1994. The Bank instructed its
employees that they should not request any time off during this
period due to the increased demands.
¶3 At some point in November 1993, Cook noticed a lump on
her lower lip. The Bank gave Cook partial time off on February 1,
1994, to visit with an ear, nose, and throat specialist, who
recommended that Cook schedule an appointment at a hospital for
surgery to remove the lump, but did not consider the procedure to
be urgent. The surgery would require Cook to miss an entire day
of work. Cook immediately began asking the Bank for permission
to take a full day off to undergo the surgery, but her requests were
repeatedly denied. It was not until April 22, some twelve weeks
later, that the Bank granted Cook an entire day off for the
procedure, but she fell sick that day and was unable to undergo
surgery. Cook tried to reschedule for May 6—the hospital’s next
available date—but the Bank did not grant her another full day off
until May 20, the date Cook finally underwent surgery.
¶4 Biopsy results from the surgery revealed that Cook had a
rare, aggressive form of malignant melanoma. Cook sought
additional evaluation and treatment in an attempt to halt the
cancer’s progress. Unfortunately, the treatments were ultimately
unsuccessful and Cook died on March 13, 1996.
¶5 Following her death, Cook’s daughters, Krista Rae Cook and
Tiffani Cherie Cook, initiated several lawsuits against the Bank. In1

Cook v. Labor Commission
1. (...continued)
See Cook v. Zions First Nat’l Bank (Cook I), 919 P.2d 56, 58–59 (Utah
Ct. App. 1996). The district court granted summary judgment in
favor of the Bank. Id. at 59. Cook died while the case was pending
on appeal. Id. We reversed and remanded. Id. at 61. The lawsuits
discussed hereafter—Cook II and Cook III—stem from this initial
litigation.
20111030-CA 3 2013 UT App 286
the first of these suits, see Cook v. Zions First Nat’l Bank (Cook II),
2002 UT 105, 57 P.3d 1084, Cook’s daughters asserted that the
Bank’s refusal to grant her requests for sick leave breached Cook’s
employment contract and resulted in Cook’s wrongful death. Id.
¶ 6. The Bank filed a motion to dismiss, arguing that the wrongful
death claim was subject to the exclusive jurisdiction and exclusive
remedy provisions of the Utah Workers’ Compensation Act
(UWCA) and that the Labor Commission was the proper
adjudicative authority. Id. The Bank also argued that breaches of
contract cannot give rise to wrongful death actions. Id. The district
court granted the motion to dismiss, determining that the UWCA
barred the suit. Id. The case was appealed to the Utah Supreme
Court, which affirmed the district court, holding that “the plain
language of the UWCA precludes plaintiffs’ wrongful death claim”
and that the UWCA “provides the exclusive remedy available to
them.” Id. ¶¶ 13–14.
¶6 Cook’s daughters also sued the Bank for breach of contract.
See Cook v. Zions First Nat’l Bank (Cook III), 2004 UT App 69U. In
that case, this court concluded that, consistent with the supreme
court’s holding in Cook II, Cook’s daughters’ claims were barred by
the exclusive remedy provision of the UWCA because they were
“‘essentially tort claims masquerading as breach of contract
claims.’” Id. para. 4 & n.2 (quoting Shattuck–Owen v. Snowbird Corp.,
2000 UT 94, ¶ 20, 16 P.3d 555).
¶7 Because both Cook II and Cook III held that the only available
remedy for Cook’s death was an action under the UWCA, Cook’s
estate, now represented by her granddaughters, Tysha R. Cook and
Tristan Ritchie (Petitioners), filed a claim for dependent benefits
with the Labor Commission (the Commission) on March 17, 2006.

Cook v. Labor Commission
2. Because the provisions in effect at the relevant time do not differ
in any way material to our analysis from the statutory provisions
now in effect, we cite the current version of the Utah Code as a
convenience to the reader.
20111030-CA 4 2013 UT App 286
See generally Utah Code Ann. § 34A-1-301 (LexisNexis 2011) (“The2
commission has the duty and the full power, jurisdiction, and
authority to determine the facts and apply the law in this chapter
or any other title or chapter it administers.”). Petitioners requested
benefits pursuant to the UWCA, or alternatively, pursuant to the
Utah Occupational Disease Act (UODA), which also comes under
the exclusive jurisdiction of the Commission.
¶8 The case was referred to an Administrative Law Judge (the
ALJ) who held an evidentiary hearing and made extensive factual
findings regarding the work environment at the Bank during the
months Cook sought leave for her needed surgery. The ALJ also
convened a medical panel composed of three physicians whose
practice specialties were in the fields of neurology, dermatology,
and dermatopathology. The panel members examined Cook’s
medical records and pathology slides and submitted a report
containing their medical opinions. The ALJ ultimately determined
that the UWCA did not apply to Petitioners’ claims; rather, the ALJ
interpreted the UODA to be the governing statute. Relying heavily
upon the medical panel’s report, the ALJ concluded that Petitioners
were not entitled to benefits under the UODA because Petitioners
had failed to establish medical causation linking the Bank’s conduct
to Cook’s cancer and death.
¶9 Petitioners filed a motion for review before the Labor
Commission Appeals Board (the Board) challenging the ALJ’s
determination that the UWCA did not apply. The Board observed
that Petitioners’ “motion for review [did] not challenge [the ALJ’s]
determination that Mrs. Cook’s death [was] not compensable as an
occupational disease.” Accordingly, the Board did not review the
ALJ’s determination under the UODA. Instead, the Board found
that even if the UWCA applied to Petitioners’ claim, Cook’s death
was not compensable because Petitioners had failed to establish
medical causation. Like the ALJ, the Board relied heavily on the

Cook v. Labor Commission
3. Petitioners also argue that the ALJ, in light of the supreme
court’s decision in Cook II, erred in interpreting the UWCA as
inapplicable to their claim. Because the issue of medical causation
is dispositive of Petitioners’ UWCA-based claim, we need not
address this issue. Even if we were to conclude that the UWCA
applied, Petitioners’ claim would nevertheless fail because we
uphold the Board’s finding that Petitioners did not establish
medical causation. See infra ¶ 21.
20111030-CA 5 2013 UT App 286
medical panel’s report in coming to this same conclusion.
Petitioners now seek judicial review of the Board’s decision.
ISSUES AND STANDARDS OF REVIEW
¶10 The central issue for our review is whether the Board’s
determination that Petitioners failed to establish medical causation
linking the Bank’s conduct to Cook’s cancer and death was
adequately supported by substantial evidence. Because “[m]edical
causation is an issue of fact,” we “review the Commission’s
findings under the substantial evidence standard” and “will sustain
the Commission’s factual determination concerning medical
causation only if its finding is adequately supported by the record.”
Chase v. Industrial Comm’n, 872 P.2d 475, 479 (Utah Ct. App. 1994);
accord Utah Code Ann. § 63G-4-403(4)(g) (LexisNexis 2011); Murray
v. Labor Comm’n, 2013 UT 38, ¶ 19, 308 P.3d 461. In other words, the
Board’s factual findings are “accorded substantial deference and
will not be overturned if based on substantial evidence, even if
another conclusion from the evidence is permissible.” See Hurley v.
Board of Review of the Indus. Comm'n, 767 P.2d 524, 526–27 (Utah
1988).3
¶11 Petitioners also dispute the Board’s decision not to apply the
UODA, claiming it erred by not sending the issue of medical
apportionment to the medical panel a second time. However,
“Utah law requires parties to preserve arguments for appellate
review by raising them first in the forum below—be it a trial court
or an administrative tribunal.” Columbia HCA v. Labor Comm’n, 2011
UT App 210, ¶ 6, 258 P.3d 640. Our inquiry is therefore limited by

Cook v. Labor Commission
20111030-CA 6 2013 UT App 286
whether this issue was adequately preserved before the
commission for our review.
ANALYSIS
I. The Board’s Determination that Petitioners Failed to Prove
Medical Causation Under the UWCA Is Supported by
Substantial Evidence.
¶12 Under the UWCA, “[a]n employee . . . who is injured . . . by
accident arising out of and in the course of the employee’s
employment . . . shall be paid . . . compensation for loss sustained
on account of the injury . . . .” Utah Code Ann. § 34A-2-401(1)
(LexisNexis 2011). “This statute creates two prerequisites for a
finding of a compensable injury. First, the injury must be ‘by
accident.’ Second, the language ‘arising out of or in the course of
employment’ requires that there be a causal connection between
the injury and the employment.” Allen v. Industrial Comm’n, 729
P.2d 15, 18 (Utah 1986). To demonstrate the requisite causal
connection, the petitioning party must prove both legal causation
and medical causation. See id. at 25. However, if a party fails to
establish medical causation, analysis of the legal causation element
is unnecessary. Hymas v. Labor Comm’n, 2008 UT App 471, ¶ 8, 200
P.3d 218; see also Lancaster v. Gilbert Dev., 736 P.2d 237, 239 (Utah
1987). To establish medical causation, a “claimant must show by
evidence, opinion, or otherwise that the stress, strain, or exertion
required by his or her occupation led to the resulting injury or
disability.” Allen, 729 P.2d at 27.
¶13 Here, the Board affirmed the ALJ’s denial of benefits but did
so on the basis that Petitioners “failed to establish medical
causation” under the UWCA. The Board did not consider, analyze,
or interpret the statutory language or the applicability of the
UWCA because it found the causation issue to be fully dispositive,
stating, “For purposes of discussion only, the [Board] accepts
Petitioners’ contention that Mrs. Cook’s death can be evaluated as
a work-related accidental injury under the [UWCA]. Nevertheless,
. . . the [Board] concludes that Mrs. Cook’s death is not

Cook v. Labor Commission
20111030-CA 7 2013 UT App 286
compensable under [the UWCA].” In reaching this conclusion, the
Board relied heavily upon the medical panel’s report.
¶14 We conclude that the medical panel’s report constitutes
substantial evidence supporting the Board’s determination that no
medical causation existed linking the Bank’s conduct to Cook’s
cancer and death. See Chase v. Industrial Comm’n, 872 P.2d 475, 479
(Utah Ct. App. 1994) (“While it is the ALJ who initially hears the
evidence, the [Board] is the ultimate fact finder.”). “Substantial
evidence is more than a mere scintilla of evidence . . . though
something less than the weight of the evidence.” Grace Drilling Co.
v. Board of Review of the Indus. Comm’n, 776 P.2d 63, 68 (Utah Ct.
App. 1989) (omission in original) (citation and internal quotation
marks omitted). “An administrative law decision meets the
substantial evidence test when a reasonable mind might accept as
adequate the evidence supporting the decision.” Martinez v. Media-
Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42,
¶ 35, 164 P.3d 384 (citation and internal quotation marks omitted).
¶15 The medical panel was composed of three experienced
physicians with specializations in neurology, dermatology, and
dermatopathology. In reaching their conclusion, the panel
members examined Cook’s medical records, which were gathered
from nine providers and medical facilities and comprised nearly
400 pages. Two of the panel members also reviewed the available
pathology slides of Cook’s tumor. In addition, the panel members
undertook a careful review of relevant medical literature and
medical studies. After doing so, they concluded that no medical
causation linked Cook’s death to the Bank’s denial of her leave. The
report’s final answer explains,
The panel can assign no percentage of aggravation,
acceleration, mortality, morbidity, or other
contribution to Gina Cook’s cancer as a result of the
above listed delays in medical treatment. Assigning
such a percentage represents a speculation
unsupportable by local experience or reference to the
medical literature. . . . Given that Ms. Cook’s
malignancy was aggressive, it can be assumed that

Cook v. Labor Commission
4. One of the report’s authors is a physician and associate professor
in the Departments of Dermatology and Internal Medicine at the
University of Utah School of Medicine. The other is a physician,
surgeon, and associate professor in the Division of Otolaryngology,
Head and Neck Surgery at the University of Utah School of
Medicine.
20111030-CA 8 2013 UT App 286
some degree of tumor growth and spread occurred
between February 19, 1994, and the date of the
scheduled but cancelled biopsy on April 22, 1994, just
over 2 months, and a subsequent short period in May
1994. In order to assess the role of this delay, needed
evidence is lacking and unobtainable. . . . We have no
way of knowing, or guessing if Ms. Cook would have
accepted any surgical recommendations in February
of 1994, and whether or not this would have made
any difference. Lacking this information, and lacking
any supportable way of even making an educated
guess, any conclusion reached is based on
speculation only, and does not rise to the level of
reasonable medical probability, especially given the
inherently aggressive nature of this cancer.
The panel’s report also explains that Cook’s form of cancer is
extremely rare, highly aggressive, and carries a very low survival
rate. The report states, “With this malignancy, one does not speak
of cure. 10-year survivals are very few.”
¶16 In contrast, Petitioners direct our attention to a joint medical
report prepared by two physicians that was presented to the ALJ
and considered by the medical panel. The joint report authors4
opined that based upon their review of Cook’s medical records and
scientific literature and based upon their education and experience,
there was a “reasonable degree of medical probability that the
delay in diagnosing Gina Cook’s cancer caused a statistically and
clinically significant difference in her prognosis, treatment needs
and options, and her quality of life.” Petitioners argue that this
alternative medical opinion establishes that the Bank’s refusal to

Cook v. Labor Commission
20111030-CA 9 2013 UT App 286
allow Cook to immediately seek medical care aggravated her
cancer.
¶17 The medical panel examined this report in its review of
Cook’s case and noted that because its authors “are trusted and
accomplished members of the medical community whose
opinion[s] carries weight, [the panel] carefully considered their
conclusions.” Nevertheless, the panel ultimately disagreed with the
report, concluding that it could assign “no percentage of
aggravation, acceleration, mortality, morbidity, or other
contribution to Gina Cook’s cancer” as a result of the Bank’s
conduct.
¶18 Given the thoroughness of the medical panel’s report, it was
certainly reasonable for the Board to accept it as evidence
supporting a finding of no medical causation. The report was made
by neutral medical experts who relied upon their own experience
as well as the medical literature in rendering their opinions. The
panel members reviewed the available medical evidence, including
all available diagnostic results. The panel members also addressed
the questions posed by the ALJ and analyzed them in terms
of reasonable medical probability based upon detailed
factual findings derived from the evidentiary hearing before
the ALJ, Cook’s medical treatment history, and the relevant
medical literature. Finally, the Board characterized the panel’s
report as “comprehensive, well-reasoned,” “authoritative,” and
“persuasive.” We conclude that the panel report is considerably
more than a “scintilla of evidence” and constitutes substantial
evidence in support of the Board’s medical causation finding.
Therefore, even if the UWCA applies, Petitioners’ claim still fails
for lack of medical causation because a reasonable mind would
“accept as adequate the evidence supporting the [Board’s]
decision.” See Martinez, 2007 UT 42, ¶ 35.
¶19 While Petitioners have identified a possible conflict in the
evidence, “[i]t is the province of the Board, not appellate courts, to
resolve conflicting evidence, and where inconsistent inferences can
be drawn from the same evidence, it is for the Board to draw the
inferences.” EAGALA, Inc. v. Department of Workforce Servs., 2007 UT

Cook v. Labor Commission
20111030-CA 10 2013 UT App 286
App 43, ¶ 16, 157 P.3d 334 (alteration in original) (citation and
internal quotation marks omitted). Consequently, our substantial
evidence “assessment does not constitute a de novo review or a re-
weighing of the evidence.” Associated Gen. Contractors v. Board of
Oil, Gas & Mining, 2001 UT 112, ¶ 21, 38 P.3d 291 (citation and
internal quotation marks omitted). Indeed, “even if we may have
reached a different conclusion than the Board did, we will not
substitute our judgment where the Board’s findings are supported
by substantial evidence.” Prosper Team, Inc. v. Department of
Workforce Servs., 2011 UT App 246, ¶ 7, 262 P.3d 462 (citing Hurley
v. Board of Review of the Indus. Comm’n, 767 P.2d 524, 524–27 (Utah
1988)).
¶20 The only conflicting evidence in the record that Petitioners
have identified is the joint medical report. Even though the report
is relevant, “[a]s the fact finder, the [Board] may choose to give
certain evidence more weight than other evidence.” See Virgin v.
Board of Review of the Indus. Comm’n, 803 P.2d 1284, 1289 (Utah Ct.
App. 1990). It is the Board’s responsibility to resolve conflicts in the
evidence that come before it. See EAGALA, 2007 UT App 43, ¶ 16.
Here, the Board had access to Petitioners’ joint medical report and
found it worthy of consideration but ultimately unpersuasive. The
Board instead relied on the conclusions reached by the medical
panel and found that no medical causation existed, thereby
resolving the evidentiary conflict. Because the medical panel’s
report constitutes substantial evidence in this case, it would be
improper for us to ignore the Board’s conclusion and to substitute
our own judgment. See Prosper Team, 2011 UT App 246, ¶ 7. We
therefore decline to disturb the Board’s finding that Petitioners did
not establish medical causation here.
II. Petitioners’ UODA Claim Is Not Preserved.
¶21 In the alternative, Petitioners argue that the Board erred by
not sending the issue of medical apportionment to the medical
panel a second time as ostensibly required by the UODA.
However, Petitioners have not adequately preserved this issue for
our review. In order to preserve an issue for review in an
administrative proceeding, a party “need only to have raised the

Cook v. Labor Commission
5. Petitioners also request our review of whether the Board erred
by not shifting the burden of proof for medical apportionment to
the Bank, claiming the Bank was responsible for Cook’s inability to
obtain the medical care that would have revealed her cancer and
thereby allowed her to develop an adequate evidentiary record.
We disagree. The law clearly imposes the burden of proof for
medical causation on the party claiming compensation benefits. See
Allen v. Industrial Comm’n, 729 P.2d 15, 27 (Utah 1986) (“Under the
medical cause test, the claimant must show by evidence, opinion, or
otherwise that the stress, strain, or exertion required by his or her
occupation led to the resulting injury or disability. In the event the
claimant cannot show a medical causal connection, compensation
should be denied.”(emphases added)). Because Petitioners are the
claimants, they bear the burden of proving medical causation.
20111030-CA 11 2013 UT App 286
issues currently on appeal to either the ALJ or the reviewing
Commission.” Columbia HCA v. Labor Comm’n, 2011 UT App 210,
¶ 6, 258 P.3d 640. The challenged issue must “initially be brought
to the fact finder’s attention ‘so that there is at least the possibility
that it could be considered.’” Id. ¶ 6 (quoting Badger v. Brooklyn
Canal Co., 966 P.2d 844, 847 (Utah 1998)). Though it is true that
Petitioners pleaded an alternate claim under the UODA in their
initial application before the ALJ, their specific claim for medical
apportionment was never presented to either the ALJ or to the
Board. As the Board noted in its decision, “Petitioners’ motion for
review does not challenge [the ALJ’s] determination that Mrs.
Cook’s death is not compensable as an occupational disease.”
Petitioners have therefore failed to preserve this issue for review
because they could have raised it before either the ALJ or the
Board. See ABCO Enters. v. Utah State Tax Comm’n, 2009 UT 36, ¶ 11,
211 P.3d 382 (“[T]he preservation rule applies when the issue raised
on [review] could have been resolved in the administrative setting
. . . .”).5
CONCLUSION
¶22 The Board’s determination that no medical causation linked
the Bank’s conduct to Cook’s cancer and death is supported by

Cook v. Labor Commission
20111030-CA 12 2013 UT App 286
substantial evidence. Therefore, Petitioners cannot recover under
the UWCA and Petitioners’ UODA claim is unpreserved.
Accordingly, we decline to disturb the Board’s decision.