Yesco v. Labor Commission ( 2021 )

2021 UT App 96THE UTAH COURT OF APPEALS
YESCO,
Petitioner,
v.
LABOR COMMISSION AND DAVID KELLER,
Respondents.
Opinion
No. 20200139-CA
Filed September 10, 2021
Original Proceeding in this Court
Bret A. Gardner and Dori K. Petersen, Attorneys
for Petitioner
Aaron J. Prisbrey, Attorney for Respondent
David Keller
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER
concurred.
HAGEN, Judge:
¶1 For over sixteen years, David Keller worked on a daily
basis installing heavy signs using a hammer drill and
jackhammer. After undergoing wrist-fusion surgery on both
arms, Keller filed for permanent total disability compensation
from his employer, YESCO, claiming he had sustained wrist and
shoulder injuries from the repetitive work activities. The Utah
Labor Commission awarded Keller benefits. YESCO now seeks
judicial review and argues the Commission erred in determining
Keller’s work activities medically caused his condition. We
conclude that the Commission applied the correct legal standard
and that substantial evidence supports its medical causation
finding as to his wrist condition, but not his shoulder condition.
Yesco v. Labor Commission
Accordingly, we set aside the Commission’s decision and
remand for further proceedings.
BACKGROUND1
¶2 In 1995, Keller began his career with YESCO working as a
sign installer. For the next sixteen years, Keller’s daily work
activities included “wire stripping, turning wrenches, hand
digging holes with a shovel, running a hammer drill on concrete
buildings, [and using] jackhammers.” The physical and
repetitive nature of these activities “would frequently bind up
and forcefully twist [Keller’s] hands and wrists.” And once in
2007, while lifting a sign, Keller “felt a pop” in his left arm
accompanied by pain and a “visible bump.” A medical exam
revealed Keller had suffered “a torn [left] biceps muscle.” After a
month of work restrictions coupled with mild pain relievers,
Keller returned to full duty.
¶3 Beginning in 2009, Keller began complaining to his
general practitioner of wrist pain. Only the left wrist was causing
pain at first, but within five months Keller complained of
worsening pain in both wrists. Keller was eventually referred to
an orthopedic surgeon for the wrist pain. The orthopedic
surgeon noted Keller’s pain had “gradually increased over the
years” and was “not the result of an injury.” After X-rays, the
orthopedic surgeon diagnosed Keller with grade four arthritis in
both wrists and opined that Keller’s “type of work is definitely a
large contributor if not sole cause of his condition.” Upon
consultation, Keller decided to move forward with surgery on
the right wrist “due to the severity of pain and limitation”
1. “In reviewing an order from the Commission, we view the
facts in the light most favorable to the Commission’s findings
and recite them accordingly.” JBS USA v. Labor Comm’n, 2020 UT
App 86, ¶ 2 n.1, 467 P.3d 905 (cleaned up).
20200139-CA 2 2021 UT App 96Yesco v. Labor Commission
caused by the arthritis, retaining the option “to proceed with
fusion of the left wrist” when ready.
¶4 The orthopedic surgeon performed a “right wrist partial
fusion” in May 2011. Keller found that the surgery improved
“his strength and pain in the wrist,” but he continued to have
“trouble jam[m]ing a shovel into the ground, using that hand to
pushup off the ground, [and] pushing hard on a wrench.”
Consequently, when Keller returned to YESCO for full-duty
work that October, he took a desk job working as the assistant to
the manager. Eight months into that role, in June 2012, Keller
suffered a minor work injury when he tripped on an “outrigger
pad[,] fell into [a] crane,” hit his head, and cut his fingers.
YESCO requested Keller undergo an evaluation, but Keller only
complained of a minor headache and “pain in his neck and
lower back,” so he was released for work duty after ten days.
¶5 Keller, however, continued to experience “severe
limiting” wrist pain. YESCO accommodated Keller’s limitations
by making him a “safety manager,” which involved mostly
supervisory work. But because the pain was “causing
impairment on a daily basis,” Keller returned to the orthopedic
surgeon in July 2013 to proceed with left wrist fusion surgery. At
first, Keller responded well to the surgery and the only
complaints he voiced to the orthopedic surgeon were related to
his left shoulder, not his wrist. Keller reported struggling for
months with “sharp, occasionally radiating” left shoulder pain
that made most movement and activities difficult. An MRI
indicated tears in the shoulder and surrounding tendon. Then,
Keller began reporting complications with his left wrist as well,
such that he could “no longer open twist-off lids or open jars due
to pain” and had to “use his fist to get up out of a chair as he
[could not] use the palm of his hand due to pain in the wrist.” At
that point, the orthopedic surgeon advised proceeding with an
additional surgery on the left wrist as well as surgery on the left
shoulder. Keller underwent shoulder and wrist surgery in
20200139-CA 3 2021 UT App 96Yesco v. Labor Commission
August 2014 and in December he was authorized for full-duty
work with “permanent restrictions” and referred for an
impairment rating.
¶6 Keller obtained two medical evaluations: the first by
YESCO’s medical consultant and the second by Keller’s general
practitioner. YESCO’s medical consultant reviewed Keller’s
medical history and provided a thorough examination to
specifically evaluate Keller for impairments from his work
accidents. The consultant determined that Keller suffered a 23%
permanent partial impairment due to his wrist and shoulder
injuries, but concluded the impairment was “nonindustrial”
because none of Keller’s surgeries or work restrictions were
“work related conditions,” i.e., related to Keller’s work
accidents; rather, the injuries were “age related.” This conclusion
was based on the fact that (1) “the symptoms and findings
[were] the same in both wrists suggest[ing] a systemic rather
than external cause for th[e] arthritis,” and (2) the left wrist and
shoulder pain began gradually and reached its peak more than
two years after Keller left his position as a sign installer. Because
YESCO’s medical consultant found none of Keller’s pain was
“attributable to his work activities,” the consultant considered
him to be “at maximum medical improvement for any work-
related condition.” Conversely, Keller’s general practitioner
found a causal relationship between Keller’s work and his wrist
problems, explaining, “overuse at work has resulted in severe
wrist arthritis.” Based on twelve years observing Keller as his
doctor, the general practitioner opined that Keller’s “wrist
cannot be used at all” because Keller’s pain is severe enough that
it would “constantly” interfere with his “attention and
concentration needed to perform even simple work tasks.”
¶7 Meanwhile, in 2014, YESCO closed its operations in the
region and Keller was laid off. After termination, Keller filed
for—and was awarded—permanent partial disability benefits
due to his 23% impairment rating from the “repetitive motion”
20200139-CA 4 2021 UT App 96Yesco v. Labor Commission
wrist injuries that occurred while he was “[p]erforming his
normal duties as a journeyman.” The next year, Keller filed for
permanent total disability compensation claiming he suffered
“repetitive trauma” from his work with YESCO that resulted in
injuries to “both wrists and left shoulder.” This time, YESCO
disputed that Keller’s injuries were medically related to his work
activities. Because the evidence was unclear on whether there
existed a definite causal connection between Keller’s work duties
and his wrist and shoulder injuries, the administrative law judge
(the ALJ) referred the case to a medical panel for evaluation.
¶8 The panel reviewed 178 pages of Keller’s medical records,
x-rays, and MRIs, and conducted a medical examination prior to
creating its report. In its report, the panel determined that
neither of Keller’s work accidents (the 2007 bicep tear and the
2012 worksite fall) “caused or contributed” to the shoulder or
wrist injuries. On the other hand, the panel opined that the
“[r]epetitive forceful manual labor with trauma such as the drill
binding, over many years, could have contributed to a degree to
[Keller’s] . . . arthritis and his left shoulder degeneration, along
with all other life exposures.” And the “repetitive forceful strains
. . . could have contributed to [Keller’s wrist arthritis] over the
years, although it would not be the sole cause.” But the panel
opined that it was “more likely” that Keller’s shoulder and wrist
injuries were due to “chronic, age related” conditions or “a
congenital predisposition.” Relying on this report, the ALJ
denied Keller benefits after finding that “Keller’s conditions
were degenerative and/or congenital and not caused by a work-
related activity.”
¶9 Keller subsequently filed a motion for review with the
Commission. On review, the Commission “read[] the medical
panel’s report differently than the [ALJ] did.” The Commission
explained that “the appropriate inquiry” in determining medical
causation “is whether the work accident contributed ‘in any
degree’ to the injured worker’s current condition for which
20200139-CA 5 2021 UT App 96Yesco v. Labor Commission
compensation is sought.” (Quoting Hutchings v. Labor Comm’n,
2016 UT App 160, ¶ 26, 378 P.3d 1273.) From the Commission’s
perspective, the panel’s report “medically causally connect[ed]
[Keller’s] work activities to his overall wrist and left-shoulder
conditions.” Accordingly, the Commission remanded the case to
the ALJ for further consideration of whether Keller qualified for
permanent total disability benefits. The ALJ awarded Keller
benefits on remand, largely echoing the Commission’s
conclusions regarding medical causation.
¶10 YESCO requested the Commission review the ALJ’s
benefits award to Keller, arguing the ALJ erred in determining
medical causation existed. The Commission affirmed the award,
reiterating that Keller’s work activities medically caused his
injuries. First, the Commission determined the panel’s report,
“as a whole,” was unequivocal and unambiguous in establishing
medical causation. While the panel stated that Keller’s two
workplace accidents “did not contribute” to Keller’s current
injuries, it acknowledged that his repetitive work activities
“could have contributed” to his current injuries. Second, the
Commission found that, by opining that Keller’s work activities
were not “the sole cause” of Keller’s wrist injuries, the medical
panel had implied that the work activities were at least a
contributing cause. Finally, the panel relied on the orthopedic
surgeon’s opinion rather than YESCO’s medical consultant
because the consultant failed to evaluate Keller’s injuries as
resulting from repetitive trauma and instead focused on the
work accidents. The Commission concluded by holding that the
opinions of “the medical panel and [the orthopedic surgeon]
represent a preponderance of the evidence” establishing medical
causation. It further stated that, “[e]ven if the medical panel’s
opinion were to be disregarded,” medical causation was met
“based on [the orthopedic surgeon’s] opinion and treatment
records.” Because YESCO raised no challenges to the award of
benefits other than the medical causation determination, the
Commission affirmed the ALJ’s benefit award.
20200139-CA 6 2021 UT App 96Yesco v. Labor Commission
¶11 Keller subsequently filed an abstract with the district
court to enforce the judgment. YESCO objected to issuance of the
abstract of award and requested a stay. The stay was denied and
the abstract of judgment against YESCO was issued.
¶12 YESCO now seeks judicial review.
ISSUE AND STANDARDS OF REVIEW
¶13 YESCO argues that the Commission erred in determining
that Keller’s work activities medically caused his shoulder and
wrist injuries. This argument has two components: YESCO
contends that the Commission “erroneously interpreted the legal
standard for finding medical causation” and that it erred in
finding that medical causation had been met. Whether the
Commission applied the correct legal standard is a question of
law we review for correctness. See Cox v. Labor Comm’n, 2017 UT
App 175, ¶ 12, 405 P.3d 863. But whether the Commission
properly found that medical causation exists is a question of fact
we review for substantial evidence. See Benge v. Cody Ekker
Constr., 2019 UT App 164, ¶ 9, 451 P.3d 667. In reviewing for
substantial evidence, we defer to the agency “if there is a
quantum and quality of relevant evidence that is adequate to
convince a reasonable mind to support a conclusion.” Provo City
v. Utah Labor Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242 (cleaned
up).
ANALYSIS
¶14 In this case, we must determine whether the Commission
properly granted Keller’s claim for permanent total disability
benefits. Under the Utah Workers’ Compensation Act, an
employee is entitled to compensation for a work-induced
permanent total disability by proving six required elements, one
of which is relevant here: that an industrial accident directly
20200139-CA 7 2021 UT App 96Yesco v. Labor Commission
caused the employee to suffer a permanent total disability.2 See
Provo City v. Utah Labor Comm’n, 2015 UT 32, ¶ 6, 345 P.3d 1242(citing Utah Code Ann. § 34A-2-413(1)(b)–(c)). In some instances,
this “direct cause” element may encompass both medical and
legal causation, see id. ¶¶ 20–21, but only medical causation is at
issue here. YESCO asserts the Commission misinterpreted and
misapplied the legal standard for establishing medical causation.
We begin by evaluating whether the Commission correctly
interpreted the medical causation standard and—after
concluding its interpretation was correct—we turn to whether
the Commission properly found medical causation was met for
both Keller’s wrist condition and his shoulder condition.
I. Legal Standard for Medical Causation
¶15 The legal standard for proving medical causation requires
an employee to show that an industrial accident was “a cause” of
the condition or injury requiring treatment. See Utah Am. Energy
Inc. v. Labor Comm’n, 2021 UT App 33, ¶ 28, 484 P.3d 1195(cleaned up); see also Hutchings v. Labor Comm’n, 2016 UT App
160, ¶ 18, 378 P.3d 1273. A correct formulation of this standard
asks whether the industrial accident contributed to the
employee’s medical condition “in any degree, such as by
aggravating a preexisting condition,” or in this case, by
2. An industrial accident is not limited to a single
incident but can result from repetitive work activities. See Smith’s
Food & Drug, Inc. v. Labor Comm’n, 2011 UT App 67, ¶¶ 8, 12, 14,
250 P.3d 1008. The ALJ concluded that the “cumulative and
repetitive trauma from heavy manual labor” installing signs
constituted an industrial “accident” for the purposes of Keller’s
claim, and YESCO has not challenged that determination on
review. We therefore evaluate Keller’s claim under a repetitive
trauma theory.
20200139-CA 8 2021 UT App 96Yesco v. Labor Commission
aggravating other contributing non-industrial factors. See Cox v.
Labor Comm’n, 2017 UT App 175, ¶ 20, 405 P.3d 863.
¶16 Here, the Commission applied the correct legal standard.
It determined medical causation by asking whether Keller’s
“repetitive trauma represents one of the medical causes of his
conditions.” While Keller may have suffered from other
contributing non-industrial factors, in assessing medical
causation, the Commission reviewed the record to determine
whether Keller’s repetitive work activities contributed to his
condition in any way. The standard applied by the Commission
is entirely consistent with the medical causation standard
articulated in our case law. See Utah Am. Energy, 2021 UT App
33, ¶ 28; Cox, 2017 UT App 175, ¶ 18.
¶17 YESCO asserts that the Commission effectively applied a
lower medical causation standard by requiring only a
speculative causal connection because it evaluated the medical
evidence to see if the industrial accident “may” have or
“possibly” contributed to Keller’s injuries. But YESCO fails to
direct us to language in the Commission’s decision articulating
this improper medical causation standard. In fact, a review of
the record reveals the Commission expressly rejected the notion
that medical causation can be met through “equivocal and
ambiguous statements.” And at the same time, the Commission
demonstrated the correct standard by pointing to evidence
establishing an “affirmative” link between the industrial
accident and Keller’s conditions. In sum, we see no error in the
Commission’s interpretation of the medical causation standard.
II. Substantial Evidence
¶18 Having determined that the Commission applied the
correct legal standard, we will uphold its finding of medical
causation so long as that finding is supported by substantial
evidence. The question of whether medical causation exists is
“one of fact . . . best informed by expert testimony or evidence.”
20200139-CA 9 2021 UT App 96Yesco v. Labor Commission
Valdez v. Labor Comm’n, 2017 UT App 64, ¶ 10, 397 P.3d 753. As
the “ultimate factfinder,” it is the Commission’s role to weigh
the evidence, resolve any conflicts, and draw reasonable
inferences therefrom in finding medical causation. See JP’s
Landscaping v. Labor Comm’n, 2017 UT App 59, ¶¶ 13–14, 397 P.3d
728.
¶19 So long as the record contains substantial evidence
showing the Commission’s finding of causation was “based on a
reasonable medical probability rather than on a medical
possibility,” we will defer to the Commission. Danny’s Drywall v.
Labor Comm’n, 2014 UT App 277, ¶¶ 9, 11, 16–17, 339 P.3d 624.
Substantial evidence is “more than a mere scintilla of evidence
though something less than the weight of the evidence.”
Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-
day Saints, 2007 UT 42, ¶ 35, 164 P.3d 384 (cleaned up). “Merely
pointing to conflicting facts and evidence is insufficient to
undermine substantial evidence supporting the finding.” Utah
Am. Energy Inc. v. Labor Comm’n, 2021 UT App 33, ¶ 30, 484 P.3d
1195.
¶20 Keller indicates that he sustained two permanent injuries
from his repetitive work activities: wrist damage and shoulder
damage. And the Commission agreed, finding that “Keller’s
repetitive trauma at work is medically causally connected to his
bilateral-wrist and left-shoulder problems.” We therefore
proceed to evaluate whether substantial evidence supports the
Commission’s medical causation finding for each injury.
¶21 We have no trouble concluding that substantial evidence
supports the Commission’s finding that Keller’s work activities
medically caused his wrist injuries. The orthopedic surgeon
opined that Keller’s “type of work is definitely a large
contributor if not sole cause of his [wrist] condition.” And
Keller’s general practitioner of twelve years opined that
“overuse at work . . . resulted in [Keller’s] severe wrist arthritis.”
20200139-CA 10 2021 UT App 96Yesco v. Labor Commission
These medical opinions amount to substantial evidence
supporting the Commission’s finding of causation.
¶22 YESCO contends that “the medical panel expressed a
conclusion contrary to a finding of causation” and unless its
conclusions are “flawed or contradictory,” “the Commission
should rely on the medical panel’s report and conclusions.”
Contrary to YESCO’s argument, the Commission was not bound
by the medical panel’s report regarding medical causation. A
medical panel report can inform the Commission’s findings, but
the report is not binding on the Commission; the Commission is
tasked with making factual determinations based on all the
evidence in the record. Hutchings v. Labor Comm’n, 2016 UT App
160, ¶ 23, 378 P.3d 1273. In any event, as the Commission noted,
the “clear inference” from the medical panel’s statement that
Keller’s repetitive work activities were not “the sole cause” but
“could have contributed” to his wrist injury is that Keller’s work
activities may well have been a cause of his wrist condition. See
Cox, 2017 UT App 175, ¶ 18. This assessment, combined with the
other opinions in the record, supports the Commission’s medical
causation finding as to the wrist condition based on a
“reasonable medical probability.” See Danny’s Drywall, 2014 UT
App 277, ¶ 9.3
3. YESCO also points to its medical consultant’s opinion—that
Keller’s shoulder and wrist injuries are caused by age-related
degeneration—to support its argument that the panel did not
find medical causation. The Commission assigned little weight
to YESCO’s medical consultant because he evaluated only
whether Keller’s injuries were caused by work accidents and not
whether they resulted from repetitive trauma. YESCO has not
challenged the Commission’s assessment of its consultant, and in
any event, “the Commission has the discretion to decide what
weight to give conflicting opinions, and we are in no position to
(continued…)
20200139-CA 11 2021 UT App 96Yesco v. Labor Commission
¶23 However, there is insufficient evidence to support the
Commission’s finding that Keller’s repetitive work activities
medically caused his shoulder condition. Neither the general
practitioner nor the orthopedic surgeon ever indicated that the
shoulder condition resulted from Keller’s repetitive work
activities. The medical panel did state that “years of repetitive
traumatic heavy labor . . . could have contributed to and or
accelerated [Keller’s] left shoulder degeneration,” but that
“[r]epetitive trauma would not be as likely to be significantly
contributory to his left shoulder condition, and in fact would be
more likely to be contributory to a condition in his dominant
right side, which condition does not exist on the right.” Notably,
the panel highlighted that the conditions necessitating the
shoulder surgery were “largely consistent with age and natural
degeneration.” The record evidence establishes only a “medical
possibility” that Keller’s repetitive work activities caused his
shoulder condition instead of the required “reasonable medical
probability.” See id. Therefore, we conclude that substantial
evidence supports the Commission’s finding of medical
causation as to Keller’s wrist condition but not as to the shoulder
condition.
¶24 Nonetheless, we cannot determine on this record whether
the non-industrial nature of the shoulder injury impacts Keller’s
entitlement to permanent disability benefits. The Commission
has not yet assessed whether Keller meets each element for a
permanent total disability award where the causal relationship
to Keller’s work activities has been established only with respect
to the wrist condition. In particular, the Commission did not
consider whether the industrial wrist condition alone qualifies as
(…continued)
reweigh the evidence” on review. Wright v. Labor Comm’n, 2021
UT App 43, ¶ 35, 489 P.3d 211, petition for cert. filed, June 16, 2021
(No. 20210419).
20200139-CA 12 2021 UT App 96Yesco v. Labor Commission
a significant impairment under Utah Code section 34A-2-
413(1)(b)(i). See Fogleman v. Labor Comm’n, 2015 UT App 294,
¶¶ 21–22, 45, 364 P.3d 211 (holding that the significant-
impairment element for permanent total disability compensation
must be restricted to analyzing conditions or injuries that are
causally related to the work accident). We therefore set aside the
award and remand to the Commission to determine, in light of
this opinion, whether Keller is entitled to permanent total
disability benefits.4 See Flying Diamond Oil Corp. v. Newton Sheep
Co., 776 P.2d 618, 622 (Utah 1989) (explaining that the absence of
necessary findings “on all material issues . . . usually requires
remand” because the appellate court cannot “properly resolve
the case on the record before it”). We express no opinion on this
determination and leave it to the Commission to decide in the
first instance.
CONCLUSION
¶25 The Commission applied the correct legal standard for
medical causation. But substantial evidence supports only the
Commission’s finding that Keller’s repetitive work activities
caused his wrist condition, not his shoulder condition. We
4. YESCO also argues that the Commission erred in issuing the
abstract to enforce the award and denying its motion to stay the
award pending appellate review. Because we have set aside the
Commission’s award, the abstract to enforce the award is void,
rendering those issues moot. See Utah Transit Auth. v. Local 382 of
Amalgamated Transit Union, 2012 UT 75, ¶ 15, 289 P.3d 582(explaining that an issue is moot where “there remains no
meaningful relief that this court could offer”). Accordingly, we
do not address them. See id. ¶ 14 (“Where the issues that were
before the trial court no longer exist, the appellate court will not
review [them].” (cleaned up)).
20200139-CA 13 2021 UT App 96Yesco v. Labor Commission
therefore set aside Keller’s permanent total disability award on
that basis and remand this matter to the Commission for further
proceedings consistent with this opinion.
20200139-CA 14 2021 UT App 96