PART 2
This article is part two in a four-part series regarding legal and medical causation in workers’ compensation cases. Part one discussed the dynamics at play in causation findings. Part two will discuss Legal Causation.
III. Causation.
The WCA provides benefits to workers injured by accident, arising out of, and in the course of, employment. UCA. § 34A-2-401. To qualify for benefits under this standard, an injured worker must establish that his/her work was both the legal cause and medical cause of the injury in question. Allen v. Industrial Comm'n, 729 P.2d 15, 25 (Utah 1986).
A. Legal Causation.
1. General Rule.
In Price River Coal Co. v. Industrial Comm’n, 731 P.2d 1079, 1082 (Utah 1986), the Utah Supreme Court described the test for legal causation. Price River Coal states:
Under Allen, a usual or ordinary exertion, so long as it is an activity connected with the employee’s duties, will suffice to show legal cause. However, if the claimant suffers from a pre-existing condition, then he/she must show that the employment activity involved some unusual or extraordinary exertion over and above the “usual wear and tear and exertions of non-employment life.” ... The requirement of “unusual or extraordinary exertion” is designed to screen out those injuries that result from a personal condition which the worker brings to the job, rather than from exertions required of the employee in the workplace.
2. What Constitutes a Pre-Existing Condition?
a. A Work-Related Injury, or Disease, Does Not Require the Higher Standard.
In Fred Meyer v. Industrial Commission, 800 P. 2d 825 (Utah App. 1990), the Utah Court of Appeals explained that the more stringent standard does not apply to a claim in which the injured worker developed his/her pre-existing condition because of a prior work accident while working for the same employer.
What about a work-related injury or disease sustained while working for a different employer? How would that be affected if it is an occupational disease, as opposed to an industrial accident? What about other employers in other states? The answer to these questions is this: Unless you meet the higher Allen legal standard, the prior employers would have liability for the injury.
b. A Pre-Existing Condition v. Risk Factor.
The Utah Court of Appeals has explained that before the more stringent standard of legal causation applies, an employer must prove, medically, that the injured worker suffers from a pre-existing condition, which contributes to the injury. See Nyrehn v.
Industrial Comm'n, 800 P.2d 330, 334 (Utah App' 1990). This means that the employer has the burden of proof of establishing a pre-existing condition that contributed to the injury.
Nevertheless, this still raises the question: Does any condition that “contributes” or makes a person more “susceptible” to a certain type of injury or condition qualify as a “pre-existing condition,” no matter how trivial the contribution? Does the fact that somebody is deconditioned, a particular sex, a particular race, overweight, underweight, and an extreme athlete, and the fact that there is medical evidence that the particular condition in play, in some minimal way, “contributed to the injury” by making someone more susceptible to a particular type of injury or occupational disease constitute a pre-existing condition? Does this, or should this, even matter?
Think of someone who has a more “loose” or “lax” joint because of a congenital or genetic variation in physiology, or due to bone deterioration from an injury or other process, like arthritis. Is this condition a pre-existing condition when it “contributes” to the injury of either a contiguous body part – like a ligament – or a more remote body part, or system? Must the contribution be significant or substantial? For example: Does the higher Allen standard apply if a worker had a congenitally lax joint, and prior to the workplace accident, had no or very little meniscus deterioration and then, due to the workplace accident, the meniscus tore? Does the higher Allen standard apply if a person had a condition like cerebral palsy, and partly due to that condition, in conjunction with a workplace condition, fell at work and injured a knee, shoulder, or hip? Finally, does the higher Allen standard apply if an individual had a systematic propensity (because of the combination of genetic and environmental conditions) and was more susceptible to carpal tunnel syndrome when engaged in any repetitive activity, and due to repetitive activity at work, he/she succumbed to carpal tunnel syndrome?
The trend from case law at the Commission and Appeals Court level appears to be that this could be the case. If that is where we are headed, it would mean that almost everyone over age 40 must prove the higher standard of Allen for a back injury. This should be resisted. I submit that as some of our medical experts, including Dr. Colledge, who has been a Labor Commission Medical Advisor and has provided expert opinions for all parties for a few decades, suggest indirectly, via their apportionment analysis, that if the prior condition did not arise to the level of qualifying for a permanent impairment, it should not be deemed a pre-existing condition. (USIRGs § 2.2a ¶ 3 p 20).
To reverse the trend, note that in Mountain States Casing Services v. McKean, 706 P.2d 601-2 (Utah 1985) (per curiam), the Utah Supreme Court determined that “[o]nce a compensable injury occurs, there is no limitation as to the time during which all medical [expenses] resulting from that injury will continue to be paid.” It further determined that “A subsequent injury is compensable if it is found to be a natural result of a compensable primary injury. [The employee] is not required to show that his original tragedy was the sole cause of a subsequent injury, but only that the initial work-related accident was a contributing cause of his subsequent ... injury. In Wash. Cnty. Sch. Dist. v. Labor Comm'n, 2015 UT 78, 358 P.3d 1091 (2015) the Utah Supreme Court clarified that “the compensable workplace injury must be a significant contributing cause of the subsequent non-workplace injury. Pursuant to the same logic, it should be equally applicable that for a pre-existing condition to require the higher Allen standard, or to allow an apportionment in an impairment rating, it must have a significant contributing cause of the subsequent non-workplace injury.
3. The Usual Wear and Tear of Non-employment Life v. an Unusual or Extraordinary Exertion.
In Murray v. Utah Labor Commission, 308 P.3d 461 (Utah 2013), the court described this standard, as follows:
Unusualness [of the work activity] is an objective standard. We compare the activity that precipitated the employee's injury with the usual wear and tear and exertions of employment life. The focus is on what typical non-employment activities are generally expected of people in today's society, not what this particular claimant is accustomed to doing. This question involves two steps: first, we must characterize the employment-related activity that precipitated the employee's injury, taking into account the totality of the circumstances; and second, we must determine whether this activity is objectively unusual or extraordinary. (Citations omitted.)
Applying this schema, the Supreme Court, in Allen, provided the following as examples of typical non-employment exertions: taking full garbage cans to the street, lifting and carrying baggage for travel, changing a flat tire on an automobile, lifting a small child to chest height, and climbing the stairs in buildings.
I would submit that determining what is an example of typical non-employment is like trying to determine what is “art,” “pornography,” or an appropriate diet. There is no objective standard. How much does a full garbage can weigh? How much baggage does one typically lift and carry when traveling? When is the last time you changed a tire, and what made it typical or unusual?
In Peterson v. Labor Comm’n, 367 P.3d 569, ¶¶ 15-16 (App. 2016), the Court of Appeals stated:
“[I]n determining whether the employment activity that precipitated [injured worker’s] injury was 'unusual' under Allen, we must consider the totality of the circumstances.” Although [the injured worker] was not lifting a great amount of weight when she was injured, it was a significant amount of weight to lift in the awkward manner that [injured worker] lifted it. We have, in the past, characterized the lifting of relatively little weight as unusual or extraordinary exertion when the manner in which the weight was lifted was unusual or awkward. .... upholding a finding of unusual or extraordinary activity based on “the weight [lifted], together with the manner in which [the employee] lifted the bucket and the fact that the bucket snagged.”
In American Roofing Co. ..., the claimant “attempted to unload a thirty pound bucket of debris out of his truck” by “lean[ing] over the bed and lift[ing] the bucket.” We have no difficulty concluding that [injured worker] similarly engaged in unusual or extraordinary exertion when she reached behind her with her arm extended “like a waiter,” placed her palm under the tray, lifted the cake tray from shoulder height, and returned forward while lowering the tray to her work table with her supinated and extended arm. In both instances, the unusual and awkward manner in which the employee lifted an otherwise-manageable amount of weight resulted in an injury. Looking at the totality of the circumstances of [injured worker]'s injury, we are satisfied that her lifting of the sixteen-pound cake tray in the peculiar manner that she did “contributed something substantial to increase the risk [she] already faced in everyday life because of [her preexisting] condition.” (Citations omitted.)
a. Extraordinary and Unusual - Cases.
(Attachment A, at end of this article)
b. Ordinary and Usual.
(Attachment A, at end of this article)
c. What Facts Establish Extraordinary and Unusual?
Based upon a review of the case law, the following factors or facts tend to preponderate in favor, or against, a finding of an extraordinary or unusual mechanism of injury:
1. The nature of the pre-existing conditions. The pre-existing conditions are relatively insubstantial. Stated conversely, the more significant or compelling the pre-existing condition, the more significant and compelling must be the forces involved in the mechanism of injury.
2. The injury severity. The greater the severity of the resultant injury when compared to the pre-existing condition, the more likely the mechanism of injury was unusual.
3. Novelty. The more novel the mechanism of injury – i.e., awkward body positions, chaotic or non-fluid forces and movements, significant twisting or torque – the more likely the mechanism of injury was unusual.
4. Exertional intensity. The greater the weights and forces involved in the mechanism of injury, the more likely that the mechanism was unusual.
5. Exigent circumstances. When production rates, speed, or intensity of work requirements combine with the mechanism of injury, it is more likely that the mechanism was unusual.
6. Occupational respect. When the injured worker’s particular vocation is viewed as an important, compelling, or hazardous occupation, it is more likely the mechanism of injury will be viewed as unusual.
7. Credibility & likability. If the injured worker is liked and believed credible regarding his/her explanations of the mechanism of injury, it is more likely it will be viewed as unusual.
8. Subjective impressions. The subjective impressions and beliefs of the injured worker about how he/she perceived the mechanism of injury, as opposed to expressing it in objective terms, do not make the mechanism of injury unusual or extraordinary.
9. Anticipated. Whether or not the injured worker anticipated the mechanism of injury, or the risk, does not make it unusual (but maybe should).
10. Habitus. An injured worker’s habitus, such as excess of weight, addictions, deconditioning, and height, may not be relevant to legal causation.
11. Common natural environs. Natural environmental conditions that we all willingly encounter do not create an unusual mechanism of injury.
12. Minor physical insults. Minor bumps, taps, slips, trips, smacks, jostles, steps, maneuvers do not make it an unusual mechanism of injury.
However, since it is the totality of the circumstances that determine whether or not the mechanism of injury is unusual or extraordinary, there are good arguments why any of these factors, when combined with other factors or facts, would establish sufficient unusualness. Moreover, if the goal is, truly, just to prevent the employer from becoming a strict liability insurer for all tragedies that occur at the workplace, the focus should be on whether or not the workplace added something to the risks that the worker with the pre-existing condition faced in his/her everyday life.
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ATTACHMENT
A
I. Commission and Appeals Case Law.
I. Extraordinary and Unusual.
Kolb v. O'Reilly Auto Parts, 031919 UTWC, 18-0049.
... Mr. Kolb was working ... when he went to open the door to its distribution center. The doorknob mechanism was a lever with a keypad located on the right side of the door. Mr. Kolb stood to the right of the door and turned the door handle with his left hand by pressing on the lever strongly with his left hand so that it rotated nearly 90 degrees downward. As Mr. Kolb’s left hand was still on the handle, it forcefully “kicked back” to its initial position and there was a loud sound. The kick back made Mr. Kolb let go of the handle and he felt immediate pain in his left arm. He lost his balance and began to fall to his left before he reached out and caught the door handle with his right hand while landing on his left knee.
....
Mr. Kolb’s work activity in question was using one hand to turn a door handle that forcefully kicked back on him. Mr. Kolb submits that ... it is not common to experience the type and intensity of the force that made the door handle kick back and emit such a loud sound. It is difficult to precisely determine the amount of force involved when the door handle kicked back; however, ... the force of the handle’s kicking back was significant as it made Mr. Kolb lose his grip and his balance.
...The activity of gripping a handle and having it forcefully kick back to the point of losing grip on the handle involves a force and exertion that does not commonly occur as part of the normal wear and tear of nonemployment life... Mr. Kolb’s exertion was not comparable to ... [‘the exertions involved when changing a tire or when handling luggage for travel’].
Banks v. Utah County Sheriff, et al.
The Commission concluded that a deputy sheriff who had to sprint and stop suddenly while responding to an emergency call met the more stringent standard of legal causation in light of the intensity of the exertion of the work activity.
Moore v. Burningham Enterprises, Inc., 051017 UTWC, 15-0702,
... Ms. Moore got a new Kenworth truck in 2015 with a hood that was difficult to open and usually required the help of another person. She explained that the hood had no hydraulic or other mechanical aid to open it and that generally a driver would pull down on a handle on the front of the hood to pitch it forward and open it. However, Ms. Moore usually had to open the hood of the new truck from the side of the truck by lifting the fender from the bottom about 16 inches off the ground, holding the weight of the hood on her torso while changing the position of her hands, and then pushing the hood up overhead before catching it to prevent it from falling forward too quickly. Ms. Moore also explained that the hood of her truck opened partway and then stopped, she believed due to its design, requiring extra effort to lift it up and overhead. When asked about the weight of the hood, Ms. Moore estimated that it was about 10-15% heavier than the hood of her regular pickup truck.
On August 20, 2015, Ms. Moore was performing a pre-trip inspection, which required opening the hood of the truck to inspect fluid levels and other parts of the engine compartment along with tire pressure and the brakes. Ms. Moore had to lift the hood and fender from the driver’s side of the truck by herself as no one was available to help her. After lifting the hood partway and changing the position of her hands to push the hood up, Ms. Moore felt pain in her left shoulder and was unable to finish opening it.
....
... Ms. Moore’s work activity in question [is not] essentially equivalent to opening the hood of a passenger vehicle. ...[O]pening the truck hood usually involved two people and required extra effort because the hood stopped after opening partway. Ms. Moore’s situation seems similar to ... American Roofing v. Industrial Comm’n, ... during which the injured worker was lifting a bucket of debris weighing 30 pounds from out of the bed of a pickup truck when the bucket got caught and required more exertion to lift it... [A]lthough the weight of the bucket was not unusual or extraordinary, the added force required to lift it as it got caught resulted in an unusual or extraordinary exertion sufficient to meet the more stringent standard of legal causation.
Judge Newman found that “there is no evidence that [Ms. Moore] applied additional force in lifting the hood. Nor is there evidence that the hood became caught or stuck while [she] lifted, circumstances that could require the application of additional force.” The ... Board disagrees with Judge Newman that the evidence is clear with regard to this point, as Ms. Moore’s description of opening the hood included the need for extra force to push the hood assembly up because it stopped after opening partway. However, it is not clear from the record whether Ms. Moore was exerting extra force due to the hood stopping when the injury occurred.
... [I]t is not necessarily unusual to lift an item to a certain level and then change one’s hand position to push the item upwards as when lifting boxes from ground level and putting them onto a shelf for storage or lifting and placing a bag in an overhead compartment on a bus or airplane. In comparing these everyday actions to Ms. Moore’s work activity, the ... Board cannot avoid the question of how much weight Ms. Moore was lifting during the accident. This information is not in the record presently.
Based on the foregoing, the ... Board concludes that this matter must be remanded ... [and] the record shall be reopened [for] evidence regarding the weight of the hood ... and whether she was exerting additional force because the hood was stopped after opening partway when she was injured... [I]t is incumbent upon her to present evidence to meet her burden of proof...
Bumgarner v. The Wellington Senior Residence, 010918 UTWC, 16-0466
... Ms. Bumgarner was working ... As a certified nursing assistant when she encountered a resident who had fallen to the ground. Ms. Bumgarner helped the resident to a sitting position and described that it felt like he weighed 200 pounds. Ms. Bumgarner called for assistance from a coworker and the two of them attempted to lift the resident from the ground but they could not move him. Another coworker came to help Ms. Bumgarner lift the resident. The two coworkers each grasped one of the resident’s arms while Ms. Bumgarner held onto the resident’s waistband to lift him. Once they got the resident upright, Ms. Bumgarner’s coworkers held his arms as Ms. Bumgarner placed her hand on his back before bending to reach for a five-pound walker for the resident to sit on. It was later determined that the resident was five feet, six inches tall and weighed 154 pounds.
After lifting the resident, Ms. Bumgarner felt numbness in her left hand... Ms. Bumgarner ... was diagnosed with unspecified sprains of the left shoulder and left elbow due to the work accident... Dr. Hurst diagnosed Ms. Bumgarner with radiculopathy in her cervical spine and referred her to Dr. Warner for a surgical consultation. Dr. Warner assessed Ms. Bumgarner with cervical-disc disorder with radiculopathy and spondylosis of the cervical spine...
....
In this case, however, ... the entirety of Ms. Bumgarner’s lifting event involved awkward and unusual exertions beyond those typically found in nonemployment life. It is apparent from the evidence in the record that the resident who had fallen could not get up under his own power. Helping an incapacitated adult to sit up and then to stand - even with the assistance of others - is a qualitatively different exertion than lifting a water bottle or cutting boards as in the Meidinger and Marquez cases discussed in Wellington’s motion for review.
Mejia v. Elwood Staffing, 091118 UTWC, 17-0340.
[Mr. Mejia had a pre-existing history of left ankle problems].
Mr. Mejia worked ... placing products onto pallets to be shipped. The pallets were constructed of wood with slats on top about four inches apart and were about four feet square and around four inches high ... Mr. Mejia was carrying a box and other lightweight items while walking on top of the slats of a pallet when his left foot fell through the space between slats and became caught, causing it to rotate and twist into the space. Mr. Mejia did not fall down and was able to steady himself by grabbing the pallet-jack handle before quickly pulling his left foot out from between the pallet slats. He felt a pop, a burning sensation and pain...
....
... [T]he work activity ... Has been compared to walking on a lawn, pavement, or a sewer grate and then taking a misstep onto a lower surface such as a sprinkler head or off of a curb. However, ...such comparisons [are inapt] because they do not account for the totality of the circumstances... The pallet’s surface contained several gaps and spaces not intended to be walked upon [and therefore] ... somewhat more precarious than those to [these other comparisons] ... If Mr. Mejia had been walking on a floor or lawn and gotten his left ankle twisted by stepping in a hole or off a stair or curb, such exertion may not be considered unusual or extraordinary compared to nonemployment life. [Since] ... Mr. Mejia was walking on an object not designed for foot traffic, ... his work activity was objectively unusual...
B. Ordinary and Usual.
Quintana v. Premier Group Staffing, #14-0582 (1/29/16)
The Commission held that briskly climbing a ladder and striking one’s head against a sheet-metal box construction severe enough to cause a neurologic sensation of light and to cause’s hearing shoulder pain was ordinary and usual. “[C]limbing a ladder and striking [one’s] head [is] similar to the common exertion of stepping onto a stool and striking one’s head on an overhead object.” (Woll v. Hexcel Corp., et al, 14-0647, issued November 2015).
Robles-Vasquez v. Employbridge, 01196 Sephora, 012319 UTWC, 17-0832,
...Ms. Robles-Vasquez contends that carrying the box at shoulder height in a narrow space is unusual when compared to the exertions of normal, everyday life. After considering the totality of the circumstances surrounding Ms. Robles-Vasquez’s work activity, the Appeals Board concludes that neither the narrow space nor the shoulder-level carrying makes the exertion involved in such work activity necessarily unusual or extraordinary.
The Appeals Board notes that the exertion involved in Ms. Robles-Vasquez’s work activity is comparable to bumping into another person in a crowded store while removing an item from a shelf or losing one’s balance while lifting a bag into an overhead bin on a bus or airplane and then attempting to catch it. Because such exertion is not unusual or extraordinary ..., Ms. Robles-Vasquez does not meet the more stringent standard of legal causation.
Hanger v. Redman Van & Storage, 081618 UTWC, 16-0577,
Mr. Hanger...drove routes throughout the western U.S. ... On September 19, 2015, Mr. Hanger was driving one of his work routes... And he traversed the Vail pass at 10,662 feet in elevation. After he cleared the summit and was descending the highway, Mr. Hanger felt a pop and extreme pain in his right ear.
....
... Although Mr. Hanger happened to be driving a truck for Redman when the work injury occurred, the medical panel explained that it was actually the “dramatic barometric pressure change” that led to the injury. Thus, ... The type of vehicle and the driving conditions do not appear to have made any difference in the exertion on Mr. Hanger’s right ear with regard to causality.
When viewed in terms of strictly the dramatic barometric pressure change, the Commission concludes that the exertion in Mr. Hanger’s case was not unusual or extraordinary when compared to those found in nonemployment life. According to the medical panel, similar dramatic changes in barometric pressure occur during air travel or driving a personal car over a mountain pass. Mr. Hanger even seems to acknowledge as much in his reply brief when he states “it would not be unusual or extraordinary for workers to commute over a regular pass to and from work[,]” [but] his work activity ... driving ... over different passes and the cumulative stress led to the injury. As noted above, however, the evidence does not support Mr. Hanger’s position that his work injury was the result of cumulative stress or trauma.
Castro v. P.J. United, Inc., 102717 UTWC, 16-0288.
...The exertion involved when stepping off a street curb and then getting into an automobile is not objectively unusual or extraordinary when compared to nonemployment activities generally expected of people in today’s society. Ms. Castro ... attempts to frame the inquiry in terms of the exertion involved over the course of her entire shift with PJ’s. However, ... [t]he work activity that precipitated the work injury—Ms. Castro getting into to her car after one particular delivery—was properly considered in accordance with the above standards. The record does not support Ms. Castro’s position that her left-knee injury occurred as a result of multiple exertions throughout her shift... [There is] no evidence connecting her work injury to repeated trauma or multiple events on the date of the accident.
Layton v. Labor Commission, 2019 UT App 59, 20180074-CA,
The injured worker sustained four injuries to his back over a period of 8 years. The first 3 were found to be compensable, but the last was not. In the last accident, the injured worker lifted “and 18 pack case of beer, weighing approximately 19 pounds, off a chest height stack. After lifting the case with his arms outstretched in front of his torso, Layton began to pull the case toward his chest, at which point he felt in “an immediate electrical sensation traveled down his back” and into his legs, causing him to fall to the ground where he was immobilized for a number of minutes. (It appears that no MRI was ever taken after any of these injuries, nor was an impairment rating provided. This allowed the insurance company to deny these injuries caused any permanent harm).
Wahlberg v. RC Willey Home Furnishings, 112216 UTWC, 15-0649.
[Ms. Wahlberg had significant, severe history of pre-existing a history] of right-shoulder problems... Ms. Wahlberg was working ... when she walked to the restroom and was struck on the backside of her right shoulder by the men's room door that was opening outward behind her. Ms. Wahlberg described that she experienced significant pain from the impact of the door as it struck her in the same area of her surgical incision. ... [T]he door that stuck [was] heavy and made of metal, and explained that it struck her right shoulder, elbow, and wrist with enough force to make her lose her balance briefly without falling down.
....
Ms. Wahlberg's subjective report of significant pain from the impact of the door does not aid in evaluating whether the activity was objectively unusual or extraordinary. It is difficult to find a suitable analogue among typical nonemployment activities for Ms. Wahlberg's activity in question, but ... being struck in the shoulder and arm by a swinging door [falls] within the usual wear and tear of nonemployment life...
The ... door [striking] Ms. Wahlberg in ... her surgical incision raises significant doubt that the injury was due to an extraordinary exertion or some unusual [factor] ... Rather than the weakened ... right shoulder. Ms. Wahlberg [extinguish] ... doubt with any objective evidence [about the ‘unusual’ door] ... or that its impact was extraordinarily forceful. Notably, ... the door[s ‘impact’ did] not ... knock [her] to the ground... Additionally, Ms. Wahlberg was not [engaged in extraordinary activities ] ... when she was accidentally struck...
Manning v. Promise Hospital, 100218 UTWC, 17-0735.
[Ms. Manning had an extensive and severe pre-existing chronic back condition and as a result of an early-age automobile accident, suffered chronic head, neck, back, and leg pain.]
... [A] housekeeper approached her from behind and pressed on the back of Ms. Manning’s knees..., causing them to buckle. Ms. Manning began to fall and her left knee hit the wall, but she was able to catch herself by holding onto a railing without falling to the ground. Ms. Manning ... believed the housekeeper kicked her in the back of the knees... [A witness] testified ... that the housekeeper came up from behind Ms. Manning and pushed the back of her knees with either the housekeeper’s own knee or her fist.
[She sustained temporary injuries to her left knee and an aggravation to her back and hip].
....
...[B]ecause the usual wear and tear of nonemployment life includes being subjected to unexpected forces and exertions such as being jostled or, as in this case, being bumped by another person in a joking manner. Ms. Manning’s subjective feeling that she had been kicked does not necessarily satisfy the requirement that the exertion in question be objectively unusual or extraordinary.
The unexpected push on Ms. Manning ... is similar to the type of exertion ... where a playground supervisor was hit in the back from behind by a fast-moving rubber ball. The ... unexpected and subjectively forceful impact in that case led to the supervisor temporarily losing her balance and aggravating a pre-existing back condition... [T]he exertion was not unusual or extraordinary as it was comparable to being jostled in a crowd. The ... Appeals [Court] agreed ... that “[t]ripping without falling, and being startled in the process, can reasonably be considered a part of ordinary nonemployment life.” Schreiber v. Labor Comm’n, 1999 UT App 376.
... Given these circumstances and their similarity to other types of everyday forces that lead to a temporary loss of balance ... like standing on a moving bus or train that turns or stops suddenly, for example - [is] ... not ... objectively unusual or extraordinary...
Brandt v. RC Willey Home Furnishings, Phoenix Insurance Co., 060216 UTWC, 15-02
[Mr. Brandt had a pre-existing knee condition and he required a knee replacement].
...Mr. Brandt[,] .. on a business trip ... was picked up by a shuttle service... He climbed into the third row of the shuttle vehicle ... and had to maneuver around a seat in the second row which had been flipped forward to allow access to the third row. Mr. Brandt crouched, shuffled his feet, and turned his torso and left leg to sit in the third-row seat, but his left foot did not turn with his leg and he felt his left knee crack. Mr. Brandt felt immediate pain in his left knee, but he was able to attend the training conference.
....
... [B]ecause Mr. Brandt’s activity of crouching and maneuvering around an object into a confined seat is not objectively unusual when compared to the wear and tear and exertions of nonemployment life... similar to crouching and maneuvering into a seat on an airplane[, or]the activity of getting into a back-row seat in a van or sport-utility vehicle[, it] is not unusual... Such everyday activities commonly require an individual to crouch, shuffle one’s feet, and pivot in order to sit down...
II. Selected Case Progression.
A. Ongoing and Settled Cases.
1. LP - The Cake Decorator:
a. Accident Description/Mechanism of Injury - ALJ Colleen Trayner.
[LP was a] ... Cake decorator. Her duties included decorating, cleaning, bagging, lifting, carrying and putting away baking goods. During a shift [LP] was required to lift a 20-pound bucket of icing from floor to table. [LP] retrieved approximately 30 cakes a day from the freezer to decorate. [LP] estimated that the heaviest item she lifted during a shift weighed 42 pounds. [LP] lifted buckets of icing weighing 7 to 18 pounds throughout her shift.
[LP] began work at 7 A.M. [LP] was standing at a mid-chest high table. Directly behind the table was a rack of cakes. There were four double cakes per tray. [LP] turned her body to lift a tray of cakes from the rack. The tray was at shoulder height. [LP]’s right hand palm was facing up with the tray on top. [LP] used her left hand to stabilize the edge of the tray. As [LP] turned to place the tray on the table she felt a burning pain in her right shoulder and she dropped the tray of cakes. The tray weighed 16.5 pounds. The measurement of the tray was 26 x 18 inches. [LP] felt immediate pain in her whole right shoulder on the top and side. Within a few seconds [LP]’s neck and back began to hurt. [LP] reported the accident on October 5, 2011 at 2:45 P.M. [LP] was seen at WorkMed on October 6, 2011. She was diagnosed with an acute right trapezius, rotator cuff and Rhomboid. On November 28, 2011. [LP] underwent a right shoulder arthroscopy.
b. Legal Causation - ALJ Colleen Trayner.
[Regarding the mechanism of injury, LP] was standing at a mid-chest high table and turned her body to lift a tray of cakes from a rack behind her. The tray was also at shoulder height. The tray weighed approximately 16.5 pounds. There is no evidence that the tray was unbalanced or unstable. [LP]’s used her left hand to stabilize the tray. Her exertion is similar to lifting items into an airplane overhead or a small child. Consequently, [LP]’s exertion was neither unusual nor extraordinary when compared to the activities of modern everyday life. Thus, [LP] failed to establish ... legal [causation] ... and she is ... not entitled to benefits.
c. Medical Causation - Medical Panel.
Medical Panel:
[The medical panel found that [LP] had pre-existing conditions, some of them due to prior work activities, and others due to a degenerative condition. It also found that her workplace accident did cause an injury that did not return to baseline].
d. Legal Causation - Appeals Board.
At issue ... is whether the more stringent standard of legal causation applies to her claim... The medical panel concluded that [LP]’s treatment history ... MRI and operative evidence, show that she had a pre-existing condition as early as 2005.
... However, the Commission cannot determine whether the presence of [LP]’s pre-existing condition should trigger the more stringent standard of legal causation because it is unclear when such condition developed. ... [I]t is possible Ms. [LP] 's pre-existing condition began while she was already working for [her employer], which would preclude application of the more stringent standard of legal causation to her claim.
In conclusion, more information is necessary... The Commission therefore remands....
e. Medical Causation - Medical Panel.
...[T]he work activities ... contributed 40% of the causation or aggravation associated with the right shoulder condition. The remaining 60% of causation has been contributed by other factors, equally divided between occupational repetitive motion of the shoulder at previous jobs and personal factors (such as genetics and rotational movement of the shoulder while doing personal activities). The medical panel finds that this attribution of causation best reflects the intensity of exposures as they are described in the Findings of Fact and by the [LP] ’s history related to the medical panel.
f. Legal Causation per the OD act vs. the WAC Act - ALJ Trayner.
... [LP] ’s case must be viewed closer to the occupational disease end and not the industrial accident/cumulative trauma end. Thus, [LP] 's claims will be analyzed under an occupational disease theory.
... [LP] is entitled to [TTD] compensation ... subject to 40% apportionment.
g. Legal Causation - Unusual/Extraordinary - Appeals Board:
Majority:
The evidence presented shows that Ms. [LP] had a pre-existing right-shoulder condition that contributed to her current condition [and] ... such pre-existing condition is not strictly a result of work-related exposure previously incurred in the same workplace. As a result, the more stringent standard of legal causation applies to Ms. [LP]’s claim [because]... lifting a 16.5-pound tray and turning to place it on a table is not an unusual or extraordinary exertion... [T]herefore, ... Ms. [LP] is not entitled to benefits for her right-shoulder condition because she has not met the more stringent standard of legal causation...
Dissent:
Even though the Utah courts have recognized the spectrum of work-related harm, it is still important for us to distinguish between industrial accidents and occupational disease. This is because, as in this case, compensation is calculated differently under each theory' and legal causation standards may be different. The problem, of distinguishing as to where on the spectrum an injured worker’s claim falls, is further made difficult when the claim has characteristics of a hybrid claim.
Today, the majority find that the totality of facts support a finding that [LP]’s claim falls on the far end of the spectrum as a single industrial accident and, then using the higher legal causation standard of Allen, denies all coverage. This finding completely diminishes the fact that [LP] has a pre-existing, occupational disease which contributed to her injury. The majority's ruling is not consistent with the directives contained in Fred Meyer and is dismissive of the spectrum of work-related harm discussed in Smith's Food, I would find, with the ALJ, that the totality of facts support a conclusion that [LP] suffers from a compensationable occupational disease and that she should be awarded apportioned compensation.
h. Legal Causation - Unusual/Extraordinary Exertion - Ct of Appeals.
Court of Appeals ([LP] v. Labor Comm’n, 367 P.3d 569, ¶¶ 15-16 (App. 2016):
However, “in determining whether the employment activity that precipitated [LP’s] injury was 'unusual' under Allen, we must consider the totality of the circumstances.” Although [LP] was not lifting a great amount of weight when she was injured, it was a significant amount of weight to lift in the awkward manner that [LP] lifted it. We have, in the past, characterized the lifting of relatively little weight as unusual or extraordinary exertion when the manner in which the weight was lifted was unusual or awkward. .... upholding a finding of unusual or extraordinary activity based on " the weight [lifted], together with the manner in which [ the employee ] lifted the bucket and the fact that the bucket snagged.”
In American Roofing Co. ... , the claimant “attempted to unload a thirty pound bucket of debris out of his truck” by “lean[ing] over the bed and lift[ing] the bucket.” We have no difficulty concluding that [LP] similarly engaged in unusual or extraordinary exertion when she reached behind her with her arm extended “like a waiter,” placed her palm under the tray, lifted the cake tray from shoulder height, and returned forward while lowering the tray to her work table with her supinated and extended arm. In both instances, the unusual and awkward manner in which the employee lifted an otherwise-manageable amount of weight resulted in an injury. Looking at the totality of the circumstances of [LP] 's injury, we are satisfied that her lifting of the sixteen-pound cake tray in the peculiar manner that she did “contributed something substantial to increase the risk [she] already faced in everyday life because of [her preexisting] condition.” (Citations omitted).
I. Postscript.
(We filed a new claim for additional TTD benefits and additional claim for PTD benefits. The TTD benefit claim was thrown out based upon, 312 week cap. In our motion for review we got a good dissent from Att. Hatch. We were arguing the length of the appeal because of the 2nd injury and unconstitutionality. In mediation we settled both claims.)
2. JM - Flying into a Wall Accident:
a. Accident Description/Mechanism of Injury.
ALJ Aurora Holley:
... [JM] arrived at work at 6:30 am. At 6:40 am, [JM] exited her office and quickly walked ten feet toward another office. The hallway between the two offices was composed of concrete flooring with carpet on top which transitioned into linoleum. Rugs were placed on top of the carpet and linoleum. The ceiling lights were not on when [JM] exited her office and walked toward the other office. As [JM] walked down the hallway, her left flip-flop shoe got caught on a rug, causing [JM] to fall forward. [JM] saw herself falling toward a door frame and pushed as hard as she could against the wall to avoid striking her head on the door frame. [JM] then fell backward, striking the left side of her low back on a wall. [JM] slid down the wall, striking her low back on the concrete floor and her head on the wall approximately 2.5 feet from the floor.
Karen Julander, [JM]'s peer, heard [JM]'s body hit the wall and came out of her office. Ms. Julander asked if [JM] was alright. [JM] responded she was fine and attempted to get up, but was unable to move. Pain shot through [JM]'s low back on the right side, causing her to feel nauseated and unable to breathe. Ms. Julander helped [JM] to her office and then to her car 15 minutes later.
b. Pre-Existing Conditions - ALJ Aurora Holley.
The medical providers contained in the Medical Records Exhibit stipulate that [JM] had pre-existing cervical and lumbar conditions which contributed to the September 27, 2012 industrial accident. In 1996, [JM] fell off a horse landing on her head, which caused a concussion and neck pain. In 2005, [JM] was involved in an ATV accident which caused a lacerated liver, bruised lungs, three broken ribs and a right ACL meniscus tear.
c. Legal Causation - ALJ Aurora Holley.
... [JM]'s ... industrial accident exceeds the forces of falling to the ground because she fell backward, hit a wall, then slid down the wall to the ground, striking her back a second time on the concrete floor and her head on a hard surface. [JM]'s inability to move or stand without assistance after the industrial event further corroborates that the event exceeded usual wear and tear exertions of modern non-employment life. [JM]'s industrial accident ... exceeds the activities of taking full garbage cans to the street, lifting and carrying baggage for travel, changing a flat tire, lifting a small child to chest height, and climbing stairs in a building. ... [JM]'s ... industrial accident satisfies the higher legal causation standard.
d. Medical Causation - Medical Panel.
It is our medical opinion that the injury caused a temporary exacerbation of her pre-existing degenerative’s disease in her neck and low back.
When determining work relatedness we apply the 6-step approach recommended by the National Institute for occupational safety and health (NIOSH).
First, regarding evidence of disease, the petition was suffering pre-existing degenerative disc disease of the cervical and lumbar spine (and lumbar stenosis).... The medical records reveal many visits for neck pain over the 5+ years prior to the injury; [T]here are a few sporadic visits for back pain as well... (MPR pp 7-8)
....
Second, regarding epidemiology, there is no epidemiological or biological evidence to show that acute trauma causes immediate degenerative disc disease... We believe the [JM]’s back pain is multi-factorial from her previous injuries, such as a horse injury in 1996 and ATV accident and 2005. Clearly the severity of trauma from these accidents was very high given the extent of her associated injuries, including a liver laceration, concussion, rib fractures and internal knee damage. Other epidemiological/demographic factors include her age, gender, anxiety and job dissatisfaction. (MPR p 8)
Third, regarding evidence of individual exposure, [JM] exacerbated her condition when she tripped on the rug at work, hitting her back on the wall and then floor. This type of exposure, a ground level fall without force or accelerating factors would be considered mild... (MPR p 8)
Fourth, with respect to consideration of other relevant factors, and alluded to in #2, [JM] has a history of significant job dissatisfaction and increasing anxiety due to being bullied by co-workers. She had requested FMLA 3 days prior to the injury, due to worsening anxiety secondary to workplace harassment from co-workers (MRE 430). It is well known that job dissatisfaction and not getting along with colleagues increases risk for low back pain. In a prospective cohort, Croft (1995) found that psychological distress (in the [JM]'s situation of work place bullying) may predispose workers claiming past occurrences of back pain to experience new episodes of back pain. (MRE pp 8-9)
Fifth, validity of testimony, given the 6-year time span between [JM]'s injury and our meeting, it is not surprising that the validity of testimony is not extremely high. Her history seems to differ somewhat compared to medical records. However, Drs. Colledge and Passey, both mention her symptom magnification and excessive pain behavior, which would correlate with factors mentioned in the fourth issue mentioned above. (MPR p 9)
Sixth, in conclusion, the mechanisms of her industrial injury was relatively mild
compared to her previous accidents of being thrown from a horse and ATV accident in the past. (MPR p 9)
....
We respectfully disagree with Clayton DC's statement of how the lumbar spine MRI on 10/29/12 showed disc herniation at L4-5. On 11/6/14 it showed a disc bulge which lead him to conclude that L4-5 disc herniation was caused by a traumatic injury on or before the MRI taken but unlikely caused before 10/29/11 therefore is likely to be a result of the work place injury. It is common for disc herniations to occur without a known antecedent trauma. There is no way to interpret the vast subtypes and descriptors of disc abnormalities (bulge, protrusion, herniation, ruptured, extrusion, slipped) and be able to characterize what specifically causes which one. (MPR p 9)
e. Medical Causation - ALJ Aurora Holley.
The ... Industrial accident caused a temporary exacerbation of [JM]'s cervical and lumbar degenerative disc disease. [JM] has proven both the legal and medical causation prongs of her claim for workers' compensation benefits, consequently, the ... Industrial accident is found compensable.
....
Because [JM]'s industrial injuries were temporary and did not cause any permanent impairments or restrictions, [JM] would be precluded from proving five of the six elements necessary to establish a permanent total disability claim. For this reason, [JM]'s claim for [P.D.] must be dismissed with prejudice.
f. Medical Causation - Appeals Board.
[JM] objected to the medical panel's report and requested a hearing on the report, but did not proffer any new, written medical evidence in conflict with the report.
....
The main argument in JM's motion for review pertains to the reliability of the medical panel's conclusions on the medical cause of her continued neck and low-back complaints.
....
The Appeals Board notes that the panel's use of a six-step approach endorsed by NIOSH when reviewing the medical aspects of [JM]' s claim neither adds credence nor detracts from the reliability of its conclusions regarding medical causation. Only the panel's consideration of [JM] 's preexisting conditions, relevant epidemiology, and individual exposure was relevant to the medical-causation issues presented in this case. Such consideration was consistent with the approach taken during any appropriate medical evaluation. Assessment of [JM]'s credibility or reliability as a historian of her own medical condition, consideration of her job dissatisfaction and anxiety, and any discussion of fault contained in the panel's report were not relevant and were not assigned any weight by the Appeals Board.
Dissent By Attorney Board Member:
In the case at hand, there was conflicting medical evidence. (There almost always is conflicting evidence when objections have been filed). However, the ALT and the majority found that the medical panel report was more persuasive. I might have agreed with the majority had the report not contained so much inappropriate "evidence." To determine how much weight the panel placed on its inappropriate factors in the finding of limited medical causation, I would remand this case to the ALJ to either hold a hearing on the objection, ask clarifying question of the panel, or arrange for a new medical panel. Since the ALJ is in the best position to determine which of these three methods would be the most effective in this case, I would leave the choice to the sound, reasonable discretion of the ALJ.
g. Medical Causation - Court of Appeals.
We settled for a significantly tempting amount of money, but the case was worth exponentially more.
3. SW - Backward Trip On A Stinger:
a. Accident Description/Mechanism of Injury - ALJ Todd Newman.
[SW] was at his work station, inspecting a steel beam resting on two welding tables. [SW] held a tape measure in his right hand, which was hooked on the end of the beam, and he was walking backwards and sideways, while keeping tension on the measuring tape. While walking backwards, [SW]’s right leg tripped on a sticker (a block of wood that was six inches tall), which caused him to shift his weight to his left knee, resulting in a twisting and grinding motion in the left knee. [SW] did not strike his left knee on any piece of equipment or the ground, nor did he fall to the ground. [SW] weighed 264 pounds at the time of the accident.
[SW] did not report any left knee injury while working for his other employers. Over a period of 20 years, [SW] did not have any work accidents involving the left knee. [SW] admitted that at some point, he did develop arthritis.
[SW] had [‘knee pain and’] chronic degenerative joint disease of the left knee that was symptomatic prior to the work accident... The extensive, complex tear of the meniscus with irregular free edge and truncation also is indicative of chronic meniscal degeneration.
Medical Causation: Yes.
MP: [SW] did injure his left knee at work on March 25, 2016. [Yet]... Dr. Jiricko opined that no work injury occurred, based on a history of a non-weight bearing injury. However, the Findings of Fact clearly describes a weight bearing twisting injury to the left knee. Although [SW] experienced pain in the left knee prior to this injury, he was able to perform his work. After the work accident, his symptoms worsened significantly, and he presented to the urgent care in a wheelchair. Although it is most likely that [SW] had chronic, degenerative tearing in the left medical meniscus prior to March 25, he did experience an injury that did most likely worsen his chronic medial meniscus degeneration. [SW] 's pain was in the medial knee, without mention of lateral knee pain. The MRI did not reveal a lateral meniscal tear, but Dr. Murray did note a tear in the lateral meniscus during surgery. lt is medically more likely than not that the lateral meniscal tear was not caused or worsened by the work accident.
ALJ: “The panel’s conclusion that [SW] aggravated his preexisting left knee condition [and is entitled to] ... a 1% whole person impairment rating is supported [‘by a preponderance of the evidence].
Legal Causation: No.
ALJ: ...The commission has long-standing precedent regarding the act of stumbling or tripping, but not falling. In Chiokai u. Beehive Clothing, 2016 UT Wrk. Comp. LEXIS 53, the injured worker was “moving at a quick pace” when her left foot struck a cart and caused her to stumble without falling. The Labor Commission held that the activity of stumbling after striking one's foot on an object was not unusual or extraordinary. The Court of Appeals of Utah also held: “Tripping without falling. . . can reasonably be considered a part of ordinary nonemployment life.” Schreiber v. Labor Comm'n, 1999 Utah App. LEXIS 309, *2.
[SW] argued that his weight of 264 pounds played a significant factor in the mechanism of injury [The ALJ doesn’t understand this is pertinent to Medical causation]. ln Rizzo u. State of Utah Dept. of Commerce and WCF, 2010 UT Wrk. Comp. LEXIS 72*,the injured worker argued that “the amount of strain and force placed on her left knee as she tripped exceeded 800 pounds of pressure due to her weight[.]” The Labor Commission dismissed the injured worker's argument, stating that “[A]n injured worker must show that the employment activity involved an unusual or extraordinary exertion.” Id. The Commission further held that “stumbling is a common activity typical of regular non-employment life.” Id. Based on the foregoing, the court concludes that [SW]’s weight is not an appropriate factor to consider in determining whether he has established the higher standard of legal causation.
By way of contrast, the court shall discuss Eborn u. Utah Transit Authority, 2011 UT Wrk. Comp. LEXIS 116 *. In Eborn, the Appeals Board concluded that the injured worker's “slip, fall, and extreme twisting of his right leg constituted an unusual or extraordinary exertion[.]” Id. Eborn is distinguishable from the case at hand because [SW] has not shown that the tripping or stumbling led to an injury that constituted an unusual or extraordinary exertion. [SW] tripped on a block of wood with his right leg, causing him to shift his weight to the left knee with a twisting and grinding motion. There was no extreme twisting of [SW]’s leg when this occurred. Moreover, none of [SW] 's body parts struck the ground or another object after he tripped. Based on the foregoing analysis, the Court concludes that [SW] has not shown that the work activity in question was unusual or extraordinary to satisfy the higher standard of legal causation under Allen.
Appeals Board: Pending.
4. SuW Nurse to the Rescue - Comatose 160 Pound Kid & 25-Pound, Disabled Toddler:
a. Accident Description/Mechanism of Injury - ALJ Marlowe.
1st IA
[SuW] was changing a male patient while working for Maxim Healthcare services. The patient's older sister, "Christina", was there to help her reposition the patient or change him when needed. The patient (weight unknown) was wet so [SuW] changed him. During the changing process the patient had slid down into the bed towards the foot of the bed and needed to be pulled up. [SuW] could not find a lift so she went to the head of the bed and got a hold of the draw sheet and pulled it towards herself several times. She then stood on the bed rails and then went to the top of the bed and tried to pull the male patient up that way. In doing this, [SuW] felt a sharp pain in her neck. As [SuW] was charting following this accident, she felt a sensation in her left buttocks (like pins and needles on her left shoulder). [Very Significant preexisting neck and shoulder conditions due to MV and other Accidents, including neck surgery].
2nd IA
[SuW] went to the home of a patient to assist with her health care. The patient was a little girl named Jasmine, who has a syndrome in which the joints in her body don't grow. The joints contract and cause Jasmine's body, legs and arms to be distorted. She also has a tracheotomy for breathing which requires her to be on a ventilator most of the time, and a feeding tube into her stomach.
The evidence presented at the hearing regarding how much Jasmine weighed was not exacting and conflicting. The [SuW] admitted that Horizon had weighed Jasmine and found her to weigh 20 pounds. However the [SuW] asserted at the hearing that Jasmine weighed 30-35 pounds. On cross exam the Respondents reminded the [SuW] that she had testified in her deposition that Jasmine weighed 20-25 pounds. The [SuW] explained that Jasmine had grown and put on more weight since Horizon had initially weighed her. The Judge concludes Jasmine weighed about 25 pounds at the time of this accident.
When the [SuW] arrived at Jasmine's home, she found Jasmine's mother at her bedside changing the sheets because Jasmine had an episode of diarrhea. Jasmine had diarrhea all over her clothes, hands, hair and face. The [SuW] lifted Jasmine and carried her up the stairs to a bathroom to clean her off. The bathroom was small and narrow - to the left of the entrance there was a sink and a toilet and then a bathtub perpendicular to the sink, opposite the doorway.
The [SuW] carried Jasmine with her left hand, cradling Jasmine's head and shoulders, and her right hand supporting Jasmine's bottom. The carry was a little different than a regular child because Jasmine's bottom was twisted out of alignment with her torso, and her back and head were arched a little bit, as shown in the pictures of Exhibit D. The [SuW] was hurrying because of the danger of getting diarrhea into Jasmine's tracheotomy tube. The toilet was close to the tub and there was about 1 ½ feet between them. The [SuW] stepped sideways between them with her left leg a little behind, knees bent, and extended her arms and began to lay Jasmine down onto a shower chair inside the bathtub that was about 2 feet high. At the same time she jerked her head up and to the left to look for the shower head. As she looked up, she felt a "hot poker" shock sensation in her neck that traveled down to the base of her spine.
[SuW] laid Jasmine on the chair, paused for a few minutes to assess her neck symptoms, then got Jasmine cleaned off with a hand-held shower nozzle. The mother got Jasmine to bed and the [SuW] went home and put herself to bed. She had trouble holding onto items and had symptoms of numbness and tingling' Her symptoms progressed and she had difficulty with balance and walking. She sought medical treatment and has not returned to work since this accident on June 1, 2015.
b. Pre-Existing Conditions.
There is no disagreement in the medical evidence of this case that the [SuW] had substantial preexisting cervical conditions which contributed to her post [6/1/15] neck pain and other severe symptoms. Therefore the Petitioner must prove the higher standard of legal causation, that is, prove that at the time of the accident she was involved in extraordinary or unusual exertion.
c. Legal Causation - ALJ Marlowe.
The totality of the circumstances precipitating the accident included the Petitioner's hurriedly lifting and carrying Jasmine up the stairs to the bathroom, side-stepping between the toilet and the tub and leaning over with her knees bent a little and arms extended to place Jasmine on the two foot high shower chair, while turning her head to look up and left for the showerhead. Jasmine weighed about 25 pounds and her back and head were a little arched and twisted due to her joint syndrome.
Next, in evaluating unusualness, the focus is on what typical non-employment activities are generally expected of people in today's society, not what this particular
claimant is accustomed to doing. In the Allen case, typical activities and exertions expected of men and women in the 20th century included taking full garbage cans to the street, lifting and carrying baggage for travel, changing a flat tire on an automobile, lifting a small child to chest height, and climbing the stairs in buildings.
Although the positioning of Jasmine's head, torso and buttocks were not in alignment, there is nothing to show that the dimensions of her body caused a carrying position all that different from a normal child. In other words, the Petitioner was able to carry her by her head/shoulders and buttocks as many small children may be carried. Jasmine was fairly lightweight at 25 pounds. There is no indication that she was moving around or resisting the Petitioner as the Petitioner carried her. Leaning/bending over somewhat to place Jasmine on the chair while looking up and to the left was not an unusual exertion when compared to the activities listed in the Allen case, such as changing an automobile tire, wrangling luggage and full garbage cans, or lifting a small child to chest height. ... [L]aying Jasmine on the chair in the manner described [is not] ... unusual or extraordinary exertion...
d. Legal Causation - Appeals Board.
Appeals Board [majority]:
Legal Causation: In [SuW’s] case, the work activity in question was bending her knees and extending both of her arms out to place a 25-pound child on a chair about two feet high and then jerking her head up and to the left... [Whether] ... such activity involved an unusual or extraordinary exertion, the totality of [SuW] 's circumstances must also be considered. Such circumstances were exigent, causing [SuW] to hurry while still exercising care over Jasmine in carrying out the activity. While [SuW]'s work activity did not include an extraordinary exertion in the sense of moving a large amount of weight or working for an extended amount of time, she can still meet the more stringent standard of legal causation if the activity consisted of an objectively unusual exertion over and above the normal wear and tear of non-employment life.
[SuW’s position is supported by] ... Peterson v. Labor Comm 'n, et al, 2016 UT App. 12, where the court held that the injured worker's activity of lifting a 16.5-pound tray from a rack located behind a work table was sufficient to meet the more stringent standard of legal causation. Like [SuW] 's situation, [LP]’s work activity did not necessarily include an extraordinary exertion of strength or endurance; however, it was determined to be unusual because it involved twisting around to lift the tray with her hand underneath it in a peculiar and awkward manner of lifting. [SuW]’s case also seems to have involved an awkward action when she jerked her head up while taking care to place Jasmine on the shower chair. To he sure, it is not unusual for a person to carry about 25 pounds and then look up and to one side; for example, a person could hold a box or a bag of a similar weight and then look up to find a space to put it on a shelf or an overhead bin. However, such actions do not fairly represent the totality of the circumstances surrounding [SuW] 's work activity.
In a previous case, Banks v. Utah County Sheriff, et al the Commission concluded that a deputy sheriff who had to sprint and stop suddenly while responding to an emergency call met the more stringent standard of legal causation in light of the intensity of the exertion of the work activity. Similar[ly]... , [SuW] was also engaged in a work activity that, while under calmer conditions may not have been unusual, was made more intense by the exigent circumstances. After considering the totality of the circumstances surrounding [SuW] s work activity in question, [we ] conclude[] that [SuW] engaged in an unusual exertion when she hurriedly bent down and extended her arms outward to place Jasmine on the shower chair while jerking her head up and to the left. ...[SuW]’s work activity in question was objectively unusual when compared to the usual wear and tear of non-employment life such that she meets the more stringent standard of legal causation. [We ]... remand[] this matter...
[Dissent-Patricia S. Drawe - Questar Corp. /Mr. Fuel Supply Comp. Attorney & Interstate Land Corporation & Salt Lake City]
I would affirm Judge Marlowe's decision with regard to the issue of legal causation and deny SuW's claim for benefits.
e. Medical Causation - Medical Panel - Drs. J. Biggs & M. Cheng.
3. If you relied upon facts not in the Findings of Fact, please disclose those facts and explain the extent to which you relied upon them.
[We] ... did not rely solely on the [Stip.] of Facts and Interim Order. The panel also relied upon the medical records provided to the panel, the history provided by the [SuW], and the physical exam performed on the [SuW].
4. What is the diagnosis of the [SuW]'s neck condition prior to the September 4, 2010 accident?
As noted above, [SuW] had neck pain since her motor vehicle crash in 1988. She had chronic neck pain, headaches, left shoulder pain, and left upper extremity radiculopathy.
In November 1988 she had anterior cervical fusion of C5-6.
In July 2002 she had two additional levels fused at C4-5 and C6-7.
After both surgeries she had improvement in her symptoms for a period of time, but then she would have worsening neck pain, left shoulder pain and headaches. [SuW] was on chronic opioid medications prior to her September 4, 2010 injury at work.
a. Did the [SuW] have permanent medical restrictions for these conditions? If so, please identify.
It is our medical opinion that [SuW] did not have any formal restrictions due to her preexisting cervical condition. She was however taking several sedating medications on a regular basis and therefore likely should have had restrictions in relation to any safety sensitive work.
5. What medical conditions or symptoms, if any, (temporary or permanent) are caused or worsened by the September 4, 2010 accident?
In relation to her cervical spine:
.... [Med. record summary]
This leads us to believe that in relation to the September 4, 2010 injury [SuW] had a temporary exacerbation of her chronic neck pain. The MRI on December 1, 2010 did not have any acute pathological changes. Also, in the medical notes she had pain in similar distributions to her pain complaints in the past. She did not require any additional therapies or pain medications over the next three months. It is our medical opinion that [SuW] was at MMI by March l, 2010 in relation to this injury without any additional impairment. No additional medications (above her significant baseline medication use) were needed, just follow up visits until March 1, 2010.
In relation to the Lumbar Spine:
There is not as much history of lumbar spine pain prior to the January 13, 2010. [SuW] had some low back pain, but we did not see any evidence of radiculopathy in the lower extremities in the past. Following the injury in 2010 she reported low back pain and then over the next several weeks developed left sided radicular symptoms.
.... [Med. record summary]
On this MRI there is evidence of degenerative spine disease that would not be related to the work injury in 2010. However, it is our medical opinion that the L5-S1 disc bulge was either created or worsened with the injury and would be medically related to the work injury of January 13, 2010. This could have resulted in her left lower extremity pain symptoms, and when she had it surgically repaired on March 9, 2011 (MRE 25) she had improvement in her symptoms and her main concerns return to her chronic neck pain. lt is our medical opinion that she was at MMI in relation to her low back injury by September 1,2011 and any further treatment, including surgery, were not related to this one injury, but to her progressive degenerative spine disease that she has throughout her spine. No additional medications were needed because [SuW] was already taking a significant amount of pain medications and muscle relaxers before this injury. Post-operative physical therapy is reasonable to be related and all her post operative office visits. No other treatment after September 1, 2011 were needed.
....
c. Does the [SuW] have permanent medical restrictions from these injuries? If so, please identify.
No.
6. What medical conditions or symptoms, if any, (temporary or permanent) are caused or worsened by the June l, 2015 accident?
It is our medical opinion the [SuW] suffered an acute cervical disc herniation causing cervical myelopathy. She requires emergent cervical spine surgery, physical therapy, occupational therapy and gabapentin medications. This particular injury has not allowed [SuW] to return to baseline as she suffered a significant spinal canal stenosis that has resulted in continued neurological symptoms that cause her to be unsteady, weak, and have coordination issues.
The [SuW] requires the following permanent work restrictions
- No overhead work
- No patient transfers
- No lifting more than 10-lbs
- No driving or operating machinery
- No walking upstairs or ladders
- No safety sensitive work
[SuW] reached medical stability by June 2016, about l-year after cervical spinal surgery.
....
7. Please state the percentage of whole person impairment of the [SuW]'s neck.
....
[SuW] qualifies for a 20% whole person impairment in relation to the June l, 2015 event.
....
9. Are any limitations you indicated above in the permanent total disability section more caused by the [SuW]'s preexisting conditions, or September 4, 2010 injuries, or June l, 2015 injuries?
b. Which, or none, is the dominant cause of any inability on the [SuW] to hold down full time employment? P lease explain.
It is our medical opinion that most of the restrictions on the form and in this report are because of her spinal canal stenosis/compression that occurred in June 2015. Prior to this injury [SuW] had significant chronic neck pain with some symptoms in her left shoulder, left arm, upper back and low back and was still technically able to work without restrictions.
All the restrictions we have noted were in place after June l, 2015 and not before.
5. FV’s
a. Accident Description/Mechanism of Injury - ALJ Trayner.
[FV] began working ... on [10/22/97]. [FV]'s job was to inspect the quality of the bags, remove the bags from conveyor belt and stack the bags on pallets. [FV] was off work from [1/5/8 to 3/7/09. [FV] returned to work [3/09] and was working the Pinch Bottomer IV machine. On [8/9/09 [FV] ... she began working on the Pinch Bottomer Ill machine. [FV] testified that the difference between the Pinch Bottomer III and Pinch Bottomer IV machine was that the machine moved right to left instead of left to right.
Respondent disputes that the machines move in different directions. [FV] testified that she would use her right hand to pull a pile of bags instead of both hands working on the Pinch Bottomer III machine... Regardless of whether the machine moves a different direction [FV] could have changed how she pulled and stacked the bags when she moved to the Pinch Bottomer Ill machine.
On [8/10/09] [FV] felt pain in her right shoulder. It felt like a cutting pain in the midpoint of her deltoid. [FV] had pain when she was lifting the bags... [FV] tried to return to work on [8/28/09] but was laid off. [FV] did return to work [later] for three hours ... but was unable to tolerate the pain in her right shoulder.
The Pinch Bottomer III machine required three people to work the machine. [FV] worked an 8 hour day with 2 ten minute breaks and a 20 minute lunch. The machine did not stop for breaks the three workers would rotate leaving two on the machine at all times. Besides breaks, lunch and some down time for setting up the machine or paperwork [FV] was inspecting and moving bags from the conveyor belt. If a machine was down for any reason [FV] was required to prepare the next order, clean up, sweep and work in the reclaim area gluing and salvaging bags.
Respondent submitted a video which depicts a similar type of machine and job functions [FV] performed on [8/10/09]. In the video the workers are seen taking stacks of about 20 bags from a machine, counting them, flipping half the stack over and stacking them on a pallet. The bags average about 15-18 pounds a hand. There are some larger and some smaller. The conveyor belt is at waist level.
[There was conflicting evidence of the manner and speed of the machine work. The ALJ critiqued the relevancy of evidence from both sides.]
The average bags per pallet were 2000 to 2500. [FV] testified that she completed 20-22 pallets in one shift. Since [FV] would have been one of three people on a machine she would have handled 1/3 of the bags. Thus, in an eight hour shift [FV] would have handled an average of 15,750 bags. [2250 bags x 21 pallets= 47250 divided by 3 workers= 15,750]. Since the three employees working the machine rotated during lunch and breaks and the machine continued to run [FV] would have handled approximately 32.81 bags per minute. [15,750 bags divided by 8 hours= 1968.75 bags per hour. 1968.75 bags per hour divided by 60 minutes = 32.81 per minute.]
[FV] is 5'4" tall. There is a controversy about how tall the pallets were stacked. [FV] testified that a year before she was stacking pallets at 6 feet. [There was contradictory evidence regarding the height of the stacked pallets - since most evidence was consistent with that of the [FV] the ALJ found that] [b]ased upon a preponderance of the evidence the pallets were stacked between 47" and 60" high.
b. Medical Causation - Medical Panel Report.
The ... Medical Panel [with] ... Joseph Q. Jarvis, MD MSPH [and] Dr. Jeff Initially, the panel submitted their report with facts that were not in evidence. The file was resubmitted to the panel for clarification. The panel reviewed the proper facts and still came to the same conclusions.
The panel opined that there is a medically demonstrable causal connection between [FV]'s current right shoulder condition and the [8/10/09] industrial accident The panel opined that [FV] ruptured a degenerative supraspinatus tendon on August 10, 2009. The panel noted that medical literature documents support the panel's position that repetitive shoulder abduction and rotator cuff tears can cause rotator cuff impingement, tendinosis and eventual rotator cuff tears. The medical panel found significant the fact that [FV] had been doing this type of work for 12 years. The panel reviewed the DVD which depicted the type of machine and work activities that [FV] performed for respondent the panel opined that [FV] had reached medical stability at the time of the medical panel examination. The panel noted that [FV] exhibited appropriate behavior on examination and discounted Dr. Knoebel's assessment that [FV] exhibited excessive pain behaviors. The panel opined that the medical care [FV] has received was necessitated by the ... industrial accident... The medical panel ... had the opportunity to review all of the medical records as well as examine the [FV] which makes their report reliable..., as well as reviewed a DVD which depicted the machine and duties that [FV] performed while working for respondent.
It should be noted that this DVD was prepared by the respondents. The panel's opinions are well reasoned and based upon a preponderance of the medical evidence.
6. MO (Piecework Seamstress):
a. Accident Description/Mechanism of Injury - ALJ Holley.
Here, the ALJ determined that the [MO]:
...[S]ustained an industrial accident ..., when she approached a sewing table, stood, and placed her right foot on the sewing pedal. [MO] lowered her right foot to depress the sewing pedal, but was unaware that a piece of slippery cloth had fallen onto the pedal. As [MO] depressed the pedal, her right foot slipped and twisted inward with her toes facing left and her heel facing right. [MO] immediately felt “very strong pain” and a “crack” in the back of her right knee. [MO]'s right knee then went numb.
....
[MO]'s description of the accident indicates that her foot didn't actually depress the pedal prior to the foot slipping on fabric. Further, the extent to which [MO]'s foot slipped is unknown. One could argue that the force of the slip must have been significant to cause a medial meniscus tear. However, the medical panel's report addressed such reasoning.
....
[MO] ... had to push hard on the sewing machine pedal to deploy the mechanism. However, [MO]'s description of the accident indicates that her foot didn't actually depress the pedal prior to the foot slipping on fabric.
b. Pre-Existing Conditions.
The panel explained:
In a healthy knee, to tear a meniscus requires a lot of force... However, the [MO]'s pre-existing osteoarthritis allowed the meniscus to be torn with less force and the twisting motion of her foot slipping off the pedal was enough torque to cause the tear. Thus, the force with which [MO] slipped and twisted her knee would not have been sufficient to cause a meniscal tear in a healthy knee, but her pre-existing condition allowed the injury to occur with reduced force.
c. Should a Pre-Existing Condition Be Significant (Viable Legal Argument)?
...[MO] acknowledges that her pre-existing osteoarthritis allowed her meniscus to be torn with less force than in a healthy knee. She further acknowledges that the force with which [MO] slipped and twisted her knee would not have been sufficient to cause a meniscal tear in a youthful, healthy knee. Stated conversely, [MO]’s pre-existing condition allowed her knee to be torn with reduced force. However, she does not concede that the reduced force was insignificant or trivial, nor that her pre-existing condition is the type that requires the higher legal causation standard.
There are many, innumerable, health conditions that make a person more susceptible to injury. That does not mean that the health condition is a significant or substantial cause of the workplace injury. Just as the Courts have determined when a non-work-related accident aggravates a pre-existing workplace injury, the pre-existing condition caused by the workplace injury must play a substantial or significant role in the need for further additional medical care, indemnity benefits or disability; a pre-existing condition should be required to play a significant or substantial role in causing the injury that arises out of a workplace accident before the higher standard of Allen is required.
Here, there is no evidence or proof whatsoever that [MO]’s meniscus was torn or in any way debilitated prior to her workplace injury. Just because her osteoarthritis made her knee less stable, and made her more susceptible to an injury, it does not follow it was a pre-existing condition of her meniscus tear. Therefore the higher standard is inapplicable. Hello
c. Legal Causation (Appeals Board).
(Majority- Kathleen Bounous [Utah Department of Workforce Services/if General
Counsel and Director of Legislative Affairs] & Monica M. Whalen [President & CEO of Employers Council])
After considering the totality of the circumstances regarding [MO]'s work activity... including the fact that she was moving quickly, [we are] not convinced that such activity involved an unusual or extraordinary exertion above the usual wear and tear of non-employment life. It is not unusual for a person to hurry and then step on a surface and have one's foot slip off and twist to the side such as when a person hurries to cross a street and his or her foot slips off a street curb or hurries to catch a bus or train and then slips while boarding.
[We] recognize[] MO's point regarding otherwise common work activities that are made unusual due to intense and exigent circumstances.... [B]ut [MO] has not shown that similarly exigent circumstances were involved during her work accident. As noted above, [MO] was working quickly before she stood at the sewing table where she twisted her knee, but moving around a certain area at a quick pace docs not amount to the same sort of intense and exigent circumstances as the SuW or Banks case that would make the exertion of [MO]'s work activity unusual or extraordinary...
(Dissent--Att. Hatch) ... I believe Murray moved the analysis of legal causation close to the view I was advancing [in other cases].
... I strongly disagreed with the majority in a complex legal causation case, Peterson v. Fresh Market Store [which] ...the Utah Court of Appeals reversed... I applaud the Peterson decision in that it moves the discussion on legal causation away from the rigged mechanical formulas which were used before Murray. In the case at hand, the majority is obsessed with the "mechanism of injury" and totally ignores the environs of the work place. This seems to me to be inconsistent with Murray and Peterson. I find that [MO]'s injury satisfies the legal causation standard of Allen and would reverse and remand to the ALJ for further determination.
IV. Making The Extraordinary Ordinary.
Sometimes it almost appears that the Commission finds as ordinary what they should deem as extraordinary, in the same way that Fire Marshal Bill demonstrated that ordinary things presented extraordinary dangers.
In the home:
https://www.youtube.com/watch?v=nxjS9D3XZRg
In the class:
https://www.youtube.com/watch?v=_UpZZGeOP2Q
V. YouTube Depo and Med Eval Prep Videos for Injured Workers.
How to prepare for a Deposition:
https://www.youtube.com/watch?v=WorDh_g5kMY
How to prepare for a Medical Evaluation:
https://www.youtube.com/watch?v=nr23w2vKcl4
