Peterson v. Labor Commission , 2016 Utah App. LEXIS 14 ( 2016 )

2016 UT App 12THE UTAH COURT OF APPEALS
LETICIA PETERSON,
Petitioner,
v.
LABOR COMMISSION, FRESH MARKET STORE #2395,
AND PHOENIX INSURANCE CO.,
Respondents.
Memorandum Decision
No. 20141063-CA
Filed January 22, 2016
Original Proceeding in this Court
Loren M. Lambert, Attorney for Petitioner
Jaceson R. Maughan, Attorney for Respondent
Labor Commission
Mark R. Sumsion and Cody G. Kesler, Attorneys
for Respondents Fresh Market Store #2395 and
Phoenix Insurance Co.
JUSTICE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and STEPHEN L. ROTH
concurred.1
PEARCE, Justice:
¶1 Leticia Peterson seeks judicial review of the Utah Labor
Commission Appeals Board’s (the Board) order denying her
1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).
Peterson v. Labor Commission
claims for workers’ compensation benefits. We conclude that
Peterson is entitled to compensation for the industrial accident
she suffered during her employment at Fresh Market Store #2395
(Fresh Market). We therefore set aside the Board’s order and
return this matter to the Labor Commission for the entry of such
an award.
¶2 Peterson began working at Fresh Market, a supermarket,
as a cake decorator in February 2005.2 Her regular duties
included lifting and moving cakes and buckets of frosting. The
cakes weighed about four pounds each, and the buckets of
frosting weighed as much as forty-two pounds. On an average
work day, Peterson decorated thirty cakes. Peterson’s duties also
included general bakery work such as bagging rolls, putting
away frozen goods, and cleaning.
¶3 On October 5, 2011, Peterson suffered a workplace injury
to her right rotator cuff. The injury occurred as Peterson was
reaching with her right arm to remove a tray of cakes from a
rack located directly behind her work table. The tray held four
cakes, weighed over sixteen pounds, and was positioned about
shoulder-height on the rack. Peterson twisted around and lifted
the tray by placing her right palm underneath it while stabilizing
2. When Peterson was hired in 2005, the supermarket was under
different ownership and was operated as an Albertsons. Around
the end of 2009, Associated Food Stores purchased the store and
renamed it Fresh Market. It thus appears that Peterson’s actual
employer may be Associated Food Stores, rather than the
establishment it operates as Fresh Market. However, neither the
change of ownership nor any confusion over the name of
Peterson’s employer (as evidenced by Peterson listing the Fresh
Market store where she worked in the caption of her pleading)
affects our resolution of this matter.
20141063-CA 2 2016 UT App 12Peterson v. Labor Commission
it with her left hand.3 As she turned back to place the tray on the
table, she felt an instant burning pain in her shoulder that caused
her to drop the tray of cakes. An MRI exam revealed that
Peterson had suffered a torn rotator cuff in her right shoulder.
¶4 Peterson filed an application for hearing with the Utah
Labor Commission, asserting an industrial accident claim and
seeking workers’ compensation benefits. An administrative law
judge (the ALJ) took Peterson’s testimony about the
circumstances surrounding her injury. The ALJ referred the
matter to a medical panel to determine whether Peterson had a
preexisting condition that contributed to the injury. The medical
panel found that Peterson did have a preexisting shoulder
condition in her right shoulder, which contributed to the injury.
In light of the medical panel’s opinion, the ALJ evaluated
Peterson’s industrial accident claim under Allen v. Industrial
Commission, 729 P.2d 15 (Utah 1986), to determine whether
Peterson’s ‚work at Fresh Market on October 5, 2011, involved
some unusual or extraordinary exertion over and above the
usual wear and tear exertions of nonemployment life.‛ The ALJ
found that the work activities that caused Peterson’s injury were
not unusual or extraordinary and were therefore not the legal
cause of her injury. For this reason, the ALJ denied Peterson’s
industrial accident claim.
¶5 Peterson appealed the ALJ’s ruling to the Board, arguing
that the ALJ erroneously applied the Allen test to her claim.
While this appeal was pending, Peterson filed another
application for hearing, this time alleging that long-term wear
and tear on her shoulder occurring during her employment at
Fresh Market constituted an occupational disease that
manifested itself in the October 2011 injury. Without reference to
3. During her testimony, Peterson agreed with her counsel’s
characterization that she lifted the tray ‚palm up, thumb
towards your shoulder, like a waiter carries a plate of food.‛
20141063-CA 3 2016 UT App 12Peterson v. Labor Commission
Peterson’s occupational disease claim, the Board set aside the
ALJ’s ruling because it could not determine whether Peterson’s
preexisting condition arose from her work at Fresh Market or
from other causes. The Board remanded the industrial accident
claim to the ALJ for further findings about the cause and timing
of Peterson’s preexisting condition in relation to her
employment at Fresh Market.
¶6 On remand, the ALJ consolidated Peterson’s industrial
accident and occupational disease claims into a single
proceeding and again referred the matter to a medical panel. The
medical panel found:
[T]he work activities at Fresh Market from
February 1, 2005 [until the injury] 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).
In other words, the medical panel found that Peterson’s
preexisting shoulder condition was 40% attributable to her work
at Fresh Market, 30% attributable to her other jobs, and 30%
attributable to personal, non-work factors.
¶7 Relying on the panel’s findings, the ALJ concluded that
Peterson’s claims required analysis as an occupational disease
rather than as an industrial accident, because Peterson’s
shoulder condition was ‚due to her work activities and personal
factors over many years.‛ The ALJ awarded Peterson workers’
compensation benefits for occupational disease but reduced her
temporary total disability compensation by 60% because only
20141063-CA 4 2016 UT App 12Peterson v. Labor Commission
40% of her occupational disease was caused by her work at Fresh
Market.
¶8 Fresh Market appealed the occupational disease award to
the Board, arguing that Peterson should not have been allowed
to pursue an occupational disease claim after the ALJ rejected
her industrial accident claim based on the same injury. The
Board rejected Fresh Market’s arguments and concluded that
Peterson’s occupational disease claim was a permissible
amendment. However, the Board concluded that Peterson’s
injury could not be characterized as an occupational disease,
because her shoulder condition had been asymptomatic for
many years and the injury was an acute injury that occurred
when Peterson lifted the tray of cakes on October 5, 2011.
¶9 Analyzing Peterson’s claim as one for industrial accident
benefits, the Board concluded that Peterson was required to
meet the Allen ‚unusual or extraordinary exertion‛ test because
a preexisting condition contributed to her injury. The Board
characterized the mechanism of Peterson’s injury as ‚lifting a
16.5-pound tray and turning to place it on a table.‛ The Board
concluded that this exertion was not unusual or extraordinary
and that Peterson had therefore not shown legal causation under
Allen. Because Peterson had not shown legal causation, the
Board denied Peterson’s industrial accident claim. One Board
member dissented, arguing that the Allen test should not apply
under the circumstances but that if Allen did bar Peterson’s
industrial accident claim, she should be able to receive benefits
on her occupational disease claim.
¶10 Peterson now seeks judicial review, raising three
arguments. First, she argues that the Allen test should not apply
to her industrial accident claim, because her employment at
Fresh Market contributed more to her preexisting condition than
either her prior work history or personal factors. Second, she
argues that if the Allen test does apply, her injury satisfied that
test because it resulted from unusual and extraordinary exertion.
20141063-CA 5 2016 UT App 12Peterson v. Labor Commission
Third, she argues that if her industrial accident claim fails, she is
entitled to compensation under her occupational disease theory.
¶11 We need not address Peterson’s first and third arguments,
because we conclude that she has established legal causation of
her injury under the more-stringent Allen test. Thus, she is
entitled to industrial accident benefits regardless of whether
Allen applies. And because Peterson is entitled to compensation
under her industrial accident theory, we need not determine
whether she would also be entitled to occupational disease
benefits on the facts presented.4
¶12 The Allen test for legal causation examines ‚*w+hether an
injury arose out of or in the course of employment . . . where the
employee brings to the workplace a personal element of risk
such as a preexisting condition.‛ Allen v. Industrial Comm’n, 729
P.2d 15, 25 (Utah 1986). ‚Just because a person suffers a
preexisting condition, he or she is not disqualified from
obtaining compensation.‛ Id. However,
[t]o meet the legal causation requirement, a
claimant with a preexisting condition must show
that the employment contributed something
substantial to increase the risk he already faced in
everyday life because of his condition. This
additional element of risk in the workplace is usually
supplied by an exertion greater than that undertaken in
normal, everyday life. This extra exertion serves to
offset the preexisting condition of the employee as
a likely cause of the injury, thereby eliminating
claims for impairments resulting from a personal
risk rather than exertions at work.
4. Peterson makes no claim that she is entitled to both industrial
accident benefits and occupational disease benefits.
20141063-CA 6 2016 UT App 12Peterson v. Labor Commission
Id. (emphasis added). ‚Thus, where the claimant suffers from a
preexisting condition which contributes to the injury, an unusual
or extraordinary exertion is required to prove legal causation.‛
Id. at 26.
¶13 Our analysis of Peterson’s injury under the Allen test
‚involves two steps: first, we must characterize the employment-
related activity that precipitated [her] injury, taking into account
the totality of the circumstances; and second, we must determine
whether this activity is objectively unusual or extraordinary.‛
Murray v. Labor Comm’n, 2013 UT 38, ¶ 48, 308 P.3d 461. The first
step ‚is a matter of fact,‛ but ‚the parties in this case do not
dispute the circumstances surrounding *Peterson’s+ accident.‛
See id. ¶ 49. Thus, we need only determine whether Peterson’s
activity when she was injured—twisting and reaching behind
herself with her extended right arm to place her palm under a
sixteen-pound cake tray to lift and move it from a shoulder-
height rack to a mid-chest height table—is ‚objectively unusual
or extraordinary.‛ Id. ¶ 48. We make this determination giving
no deference to the Board’s conclusion. See id. ¶ 40
(‚‘*U+nusualness’ . . . is an objective legal standard that we are in
a better position to analyze than the [Board].‛).
¶14 ‚Utah courts have deemed employment activities to be
‘unusual’ or ‘extraordinary’ when they require an employee to
endure jumping, lifting great weight, or repetition.‛ Id. ¶ 51.
Peterson’s injury was not caused by any one of these factors in
isolation. The injury did not involve jumping. It also did not
involve lifting an amount of weight that would, standing alone,
satisfy Allen because of its magnitude. Compare Crosland v.
Industrial Comm’n, 828 P.2d 528, 529, 530 n.3 (Utah Ct. App. 1992)
(concluding that moving a two-hundred-pound sign qualified as
an unusual activity), with Allen, 729 P.2d at 26 n.8 (‚‘[T]he usual
wear and tear of life . . . certainly includes lifting objects
weighing 20 pounds such as bags of golf clubs, minnow pails,
and step ladders.’‛ (quoting Arthur Larson, Workmen's
Compensation § 38.83, at 7-280-81 (1986) (footnotes omitted))).
20141063-CA 7 2016 UT App 12Peterson v. Labor Commission
And it did not involve the kind of constant repetition that has
previously served to show legal causation under Allen.5 See
Stouffer Foods Corp. v. Industrial Comm’n, 801 P.2d 179, 183 (Utah
Ct. App. 1990) (concluding that ‚applying repeated or constant
pressure‛ to the grips of high-pressure, gasoline-type hoses is
not a ‚typical non-employment activity‛).
¶15 However, ‚in determining whether the employment
activity that precipitated *Peterson’s+ injury was ‘unusual’ under
Allen, we must consider the totality of the circumstances.‛ See
Murray, 2013 UT 38, ¶ 47. Although Peterson 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
Peterson 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. See American Roofing Co. v. Industrial Comm’n, 752 P.2d
912, 915 (Utah Ct. App. 1988) (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‛ (emphasis added)).
¶16 In American Roofing Co. v. Industrial Commission, 752 P.2d
912 (Utah Ct. App. 1988), 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.‛ Id. at 913. We have no difficulty
concluding that Peterson 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,
5. There is some suggestion in the record that Peterson regularly
removed cake trays from the rack and moved them to her work
table. However, the record does not indicate the frequency of
such activity, nor does it indicate that Peterson ordinarily
transferred the trays with the same extended-arm technique that
resulted in her October 5, 2011 injury.
20141063-CA 8 2016 UT App 12Peterson v. Labor Commission
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 Peterson’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.‛6 See Allen, 729 P.2d at 25.
¶17 We conclude that Peterson’s industrial accident resulted
from unusual or extraordinary exertion and that Peterson has
therefore established that her Fresh Market employment was the
legal cause of her injury, regardless of her preexisting shoulder
condition. We therefore set aside the Board’s order and return
this matter to the Labor Commission for a determination and
award of industrial accident benefits.
6. The parties have not identified any ordinary life activity that
would necessitate lifting and moving such a weight in a similar
manner. When asked to identify such an activity at oral
argument, Fresh Market’s counsel suggested that Peterson’s
motion was similar to removing carry-on luggage from an
overhead bin on an airplane. The analogy is not without its
appeal. Carry-on luggage can certainly weigh sixteen pounds,
and retrieving luggage from overhead bins is an ordinary
activity. However, people do not ordinarily reach directly
behind themselves, palm up, with an extended arm, and attempt
to retrieve luggage by carrying it on their palm. Although such
an exertion could conceivably occur in day-to-day life, it would
not be usual or ordinary.
20141063-CA 9 2016 UT App 12