Watson v. Labor Commission , 2020 UT App 170 ( 2020 )

2020 UT App 170THE UTAH COURT OF APPEALS
SUSAN M. WATSON,
Petitioner,
v.
LABOR COMMISSION, HORIZON HOME HEALTH, AND
AMERICAN LIBERTY INSURANCE,
Respondents.
Opinion
No. 20200231-CA
HORIZON HOME HEALTH AND AMERICAN LIBERTY INSURANCE,
Petitioners,
v.
LABOR COMMISSION AND SUSAN M. WATSON,
Respondents.
Opinion
No. 20200297-CA
Filed December 24, 2020
Original Proceedings in this Court
Loren M. Lambert, Attorney for Susan M. Watson
Chad P. Curtis, Attorney for Horizon Home Health
and American Liberty Insurance
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.
ORME, Judge:
¶1 Susan M. Watson and Horizon Home Health (Horizon)
both seek review of the Utah Labor Commission’s award of
temporary total disability benefits and medical expenses to
Watson v. Labor Commission
Watson based on a workplace injury. 1 Watson argues that the
Commission erred in not awarding her permanent total
disability, while Horizon argues that the Commission erred in
not completely denying Watson’s claim for benefits due to a
pre-existing condition. We decline to disturb the Commission’s
order in either respect.
BACKGROUND 2
¶2 On June 1, 2015, while working for Horizon as an in-home
nurse, Watson arrived at the home of a severely disabled toddler
(Toddler) for whom she provided care. Toddler suffers from a
syndrome that stunts the growth of the joints in her body,
1. We are resolving Watson’s and Horizon’s petitions for review
in one opinion for efficiency. If this were an appeal from a court
proceeding, one party would typically appeal an adverse
decision and the opposing party would then have the option to
cross-appeal any decision below that was also adverse to its
interests, resulting in a single appellate case and less briefing. See
Utah R. App. P. 4(d). But because the rules of appellate
procedure do not allow for a cross-petition in the administrative
context, akin to a cross-appeal in a judicial proceeding, each
party must file its own petition for review if they both wish to
contest the administrative agency’s ruling, allowing, in essence,
two “appeals” from a single case. See id. R. 18 (stating that rules
3–8 are not applicable to judicial review of administrative
orders). This encourages inefficiency, and the Supreme Court’s
Advisory Committee on the Rules of Appellate Procedure may
wish to consider amending the rules to allow cross-petitions for
review in administrative cases.
2. “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.” O’Connor v. Labor Comm’n, 2020
UT App 49, n.1, 463 P.3d 85.
20200231-CA 2 2020 UT App 170Watson v. Labor Commission
causing them to contract and resulting in Toddler’s body,
including her legs and arms, becoming “distorted.” To assist her
breathing, Toddler had undergone a tracheotomy, which left a
hole through the front of her neck into her trachea that was
connected to a respirator via a tube. Upon Watson’s arrival, she
witnessed Toddler in her bed “covered from head to toe with
diarrhea.” Watson became alarmed because Toddler could
experience life-threatening complications if excrement entered
the tracheotomy hole.
¶3 In response to this medical emergency, Watson
immediately picked up Toddler, who weighed approximately 25
pounds, and rushed up a flight of stairs to a bathroom to clean
her off as quickly as possible in an attempt to prevent the
excrement from entering Toddler’s tracheotomy tube. Watson
“carried [Toddler] with her left hand cradling [Toddler’s] head
and shoulders and her right hand supporting [Toddler’s]
bottom,” which “was a little different than [carrying] a regular
child because [Toddler’s] bottom was twisted out of alignment
with her torso and her back and head were arched.”
¶4 Once in the bathroom, Watson attempted to place
Toddler, who was “slippery . . . because she ha[d] stool all over
her,” onto a shower chair in a shower-bathtub combination,
while being careful not to allow any excrement into the
tracheotomy tube. To put Toddler in the bathtub, Watson had to
sidestep between the toilet and the tub, which were
approximately 18 inches apart. As Watson “extended her arms
. . . to lay [Toddler] down onto [the] shower chair inside the
bathtub that was about 2 feet high, . . . she jerked her head up
and to the left to look for the shower head.” The moment she did
this “she felt a ‘hot poker’ shock sensation in her neck that
travelled down to the base of her spine.” Despite the pain,
Watson was able to finish cleaning Toddler and then went home,
where she began to experience numbness and tingling in her
extremities.
20200231-CA 3 2020 UT App 170Watson v. Labor Commission
¶5 Before this accident, Watson had experienced numerous
problems in her neck and spine. In 1988, she had a discectomy
and decompression surgical procedure, as well as “another
surgery in 2002 to fuse vertebrae with plate fixation at the C4-7
levels of her cervical spine.” She also suffered two additional
neck injuries: one resulting from a car accident in 2009 and
another from a workplace accident while working for a different
employer in 2013.
¶6 On June 4, 2015, Watson sought medical treatment at a
local clinic and was diagnosed “with central canal stenosis at the
C3-4 level of her cervical spine with spinal-cord compression
and a disc bulge.” She was referred to an emergency room and,
that same day, “[s]he underwent surgery to remove the previous
instrumentation, decompress the nerves at C3-4, and extend the
fusion of her cervical vertebrae.”
¶7 Soon after this surgery, Watson’s longtime treating
physician (Treating Physician) examined her. Treating Physician
opined that “Watson’s neck symptoms were medically caused
by the [June 1,] 2015 work accident” but that her “pre-existing
neck condition . . . contributed to the injury.” Horizon’s medical
consultant also examined Watson and agreed that “Watson’s
pre-existing neck condition contributed to her work injury and
need for emergency surgery,” but he opined that she “would
have required surgical intervention at some point regardless of
the work accident.” Horizon’s consultant also stated that Watson
should be restricted to lifting 10 pounds, should not do any
overhead work, should not drive for work, and should be
allowed “frequent position[] changes.”
¶8 Watson brought a claim for workers’ compensation
benefits based on this injury, claiming temporary total disability
and permanent total disability. An administrative law judge (the
ALJ) held an evidentiary hearing and, given Watson’s
pre-existing condition, applied the more stringent legal standard
of causation laid out in Allen v. Industrial Commission, 729 P.2d 15(Utah 1986). The ALJ determined that Watson did not meet this
20200231-CA 4 2020 UT App 170Watson v. Labor Commission
standard and denied her claim for benefits. Watson appealed to
the Commission, which determined that Watson satisfied the
more stringent standard and therefore set the ALJ’s ruling aside
with instructions for the ALJ to make determinations regarding
Watson’s level of disability and the benefits to which she was
entitled.
¶9 On remand, the ALJ referred Watson’s claim to a medical
panel. The medical panel determined that the incident with
Toddler “medically caused [Watson] to suffer an acute
cervical-disc herniation at the C3-4 level that led to
cervical-spine myelopathy.” This necessitated surgical treatment,
physical and occupational therapy, and medication. The medical
panel “assessed [her] with a 20% whole-person impairment
rating” as a result of the injury and placed the following work
restrictions on her: “no overhead work, no lifting more than 10
pounds, no driving or operating machinery, no patient transfers,
no climbing stairs or ladders, and no safety-sensitive work.” The
medical panel also opined that “[t]his particular injury has not
allowed . . . Watson 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.”
¶10 The ALJ then held an evidentiary hearing at which
Watson testified to the following:
a. On the six to eight days per month that she was
most active, she had to take breaks throughout
the day totaling between four and five hours.
b. On her “good days,” she could continuously sit
for only 30 to 45 minutes at a time without
having to get up.
c. On her active days, she could stand for only 15
minutes at a time, for a total of an hour and a
half per day, at most.
20200231-CA 5 2020 UT App 170Watson v. Labor Commission
d. She was limited in the work she could do with
her hands because she lost coordination in them
and could not feel her fingers.
e. She used to be able to type sixty words per
minute, but after the injury she could not type
at all.
f. Her “pain has been unbelievable,” she still
could not feel areas of her legs, she had severe
pain in her feet and hands, and the pain in her
midsection frequently restricted her breathing.
g. It takes her approximately an hour and a half
after she wakes up to be able to balance and
navigate around the house.
h. She allowed her nursing license to expire
because she could no longer perform any
nursing duties.
i. She tried for approximately two years to obtain
employment as a nurse in a call center but
could not even get an interview.
¶11 Following Watson’s testimony, a vocational expert
(Expert) testified on behalf of Horizon. Expert testified that at the
time of Watson’s injury, she was qualified to be a nursing
director, an audit nurse, an internal review/utilization health
nurse, a hospital discharge planning nurse, and a telephonic
health nurse—all of which Expert labeled as sedentary jobs.
Expert also testified that based on Watson’s “medical
restrictions,” there was nothing “that would keep her from
doing the [job of a] nursing service director.” Regarding the
telephonic health nurse position, Expert stated that it required
“very little typing”—typically around nine to twelve minutes in
an eight-hour work day—and there is “no speed requirement”
for the typing. Regarding the audit nurse position, Expert
opined that Watson “could actually sit and stand if the doctor
indicated she would be able to look down at a computer screen”
so long as no overhead work was required. Expert also testified
that the review/utilization nurse position would require Watson
20200231-CA 6 2020 UT App 170Watson v. Labor Commission
to “review[] information either on a computer screen or [by] . . .
actually having a physical file in your hand to go through.”
¶12 On cross-examination, Expert explained that these jobs
could entail up to a little more than two and a half hours per day
of “reaching, fingering, and handling.” Expert also stated that
Watson’s potential inability to maintain her balance would not
disqualify her outright, but he opined that “an employer is not
going to put up with you [if there is a] risk of you falling,” and
Watson “probably would not be able to maintain employment if
she’s falling down.” Expert further testified that if Watson “was
only able to sit 30 to 45 minutes and would have to get up and
walk around and leave the workstation,” she would not be able
to hold any of the positions he identified.
¶13 Relying on the medical panel’s findings on medical
causation and the Commission’s determination that Watson
satisfied the more stringent Allen standard for legal causation,
the ALJ concluded that Watson was entitled to benefits. But the
ALJ determined that she was eligible only for temporary total
disability benefits and medical expenses, not for permanent total
disability benefits, because she failed to meet all the elements
required to sustain such an award under section 34A-2-413(1) of
the Utah Code. Both Watson and Horizon appealed to the
Commission.
¶14 Before the Commission, Horizon argued that “Watson has
not shown that the work accident legally or medically caused
her neck injury.” The Commission rejected this argument, noting
that it had already ruled in Watson’s favor with regard to legal
causation, and determined that, based on “the opinions of
[Treating Physician] and the medical panel,” the “preponderance
of the evidence shows that . . . Watson’s work activities
medically caused her neck injury.” Watson, in turn, argued that
the ALJ erred in not awarding her permanent total disability.
The Commission rejected her argument, ruling that under Utah
Code section 34A-2-413(1)(b)–(c) and Provo City v. Labor
Commission, 2015 UT 32, 345 P.3d 1242, Watson failed to establish
20200231-CA 7 2020 UT App 170Watson v. Labor Commission
three of the six required elements to warrant an award of
permanent total disability benefits.
¶15 Watson and Horizon each seek our review of the
Commission’s decision.
ISSUES AND STANDARDS OF REVIEW
¶16 Watson contends that the Commission’s denial of her
claim for permanent total disability is not supported by
substantial evidence and is therefore not legally sufficient. “A
challenge to an administrative agency’s findings of fact is
reviewed for substantial evidence, and findings of fact are
therefore accorded substantial deference and will not be
overturned if they are based on substantial evidence, even if
another conclusion from the evidence is permissible.” Pritchard
v. Labor Comm'n, 2019 UT App 184, ¶ 10, 453 P.3d 677 (quotation
simplified). “Substantial evidence exists when the factual
findings support 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 (quotation simplified). And “an
administrative law decision meets the substantial evidence test
when a reasonable mind might accept as adequate the evidence
supporting the decision.” Id. (quotation simplified).
¶17 Horizon asserts that the Commission erred in ruling that
the exertions that led to Watson’s injury were sufficiently
unusual and extraordinary to meet the heightened standard of
legal causation under Allen v. Industrial Commission, 729 P.2d 15(Utah 1986). This issue “presents a traditional mixed question of
law and fact.” Murray v. Labor Comm'n, 2013 UT 38, ¶ 24, 308
P.3d 461. “And because the ultimate question is the legal effect
of the facts, i.e., whether a given set of facts is objectively
unusual, rather than witness credibility or demeanor, our review
of the ultimate question is non-deferential.” JBS USA v. Labor
20200231-CA 8 2020 UT App 170Watson v. Labor Commission
Comm'n, 2020 UT App 86, ¶ 8, 467 P.3d 905 (quotation
simplified).
¶18 Horizon also argues that the Commission “made factual
findings not supported by the evidentiary record.” We review
the Commission’s factual findings “under the substantial
evidence standard of review, examining the whole record to
determine whether a reasonable mind might accept as adequate
the evidence supporting the decision.” Quast v. Labor Comm'n,
2017 UT 40, ¶ 15, 424 P.3d 15 (quotation simplified). 3
ANALYSIS
I.
¶19 We begin by analyzing Watson’s argument that the
Commission erred by not granting her permanent total disability
compensation. Under Utah’s Workers’ Compensation Act, an
injured employee must prove all of the following six elements to
qualify for permanent total disability benefits: (1) “the employee
sustained a significant impairment or combination of
impairments as a result of the industrial accident”; (2) “the
employee is not gainfully employed”; (3) “the employee has an
impairment or combination of impairments that reasonably limit
the employee’s ability to do basic work activities”; (4) “the
industrial or occupationally caused impairment or combination
of impairments prevent the employee from performing the
essential functions of the work activities for which the employee
3. The parties raise additional subsidiary issues. We have
considered these issues and, in the context of this case, conclude
that they are without merit, and we decline to discuss them
further. See State v. Carter, 776 P.2d 886, 888 (Utah 1989) (“[I]t is a
maxim of appellate review that the nature and extent of an
opinion rendered by an appellate court is largely discretionary
with that court.”).
20200231-CA 9 2020 UT App 170Watson v. Labor Commission
has been qualified until the time of the industrial accident”;
(5) “the employee cannot perform other work reasonably
available”; and (6) “the industrial accident . . . is the direct cause
of the employee’s permanent total disability.” Utah Code Ann.
§ 34A-2-413(1)(b)–(c) (LexisNexis 2019). 4 See Provo City v. Labor
Comm'n, 2015 UT 32, ¶ 6, 345 P.3d 1242.
¶20 Here, Watson challenges the Commission’s determination
that she did not meet the final three elements. Because we agree
with the Commission that Watson failed to meet the fourth
element, which is fatal to her claim, we limit our analysis to that
element.
¶21 The fourth element requires an employee to show that
“the industrial or occupationally caused impairment or
combination of impairments prevent the employee from
performing the essential functions of the work activities for
which the employee has been qualified until the time of the
industrial accident.” Utah Code Ann. § 34A-2-413(1)(c)(iii).
Watson claims that the Commission erred in this respect because
it failed to consider medical evidence in the record in
conjunction with Expert’s testimony regarding the essential
functions of the work for which she was qualified at the time of
the accident. Specifically, she claims her testimony about her
inability to perform these functions after her accident and the
evidence from medical providers in the record—that, among
other things, she had difficulty maintaining her balance,
experienced loss of coordination, had hand numbness, could lift
only 10 pounds, needed frequent position changes, and could
not drive while on the job—all necessitated a finding that she
met the fourth element. While we are sympathetic to Watson’s
4. Because the relevant provisions of the Utah Code in effect at
the time of Watson’s injury do not materially differ from those
currently in effect, we cite the current version of the code for
convenience.
20200231-CA 10 2020 UT App 170Watson v. Labor Commission
employability plight in a real-world sense, our standard of
review does not allow us to grant her the relief she requests.
¶22 While it is true that all the foregoing evidence was in the
record, the Commission found that Watson did not meet the
fourth element because “the preponderance of the medical and
vocational evidence presented is more persuasive regarding
[Watson’s] ability to work as a nursing services director than her
subjective assertions on her physical limitations” and because
there was “no medical opinion in the record—even from . . .
Watson’s own treating physicians—indicating that she is unable
to work despite her complaints of ongoing pain and weakness.”
The Commission deferred to the medical experts’ ultimate
conclusions in the record. Specifically, it relied on the medical
panel, which placed the following work restrictions on Watson:
“no overhead work, no lifting more than 10 pounds, no driving
or operating machinery, no patient transfers, no climbing stairs
or ladders, and no safety sensitive work.” The medical panel
examined Watson and was fully aware of the problems from
which she suffered but nonetheless placed only the
aforementioned restrictions on her, 5 none of which disqualified
5. Citing Guzman v. Labor Commission, 2015 UT App 310, 365 P.3d
725, Watson claims that the Commission erred in relying on the
medical panel’s opinion that she could work. Watson’s claim on
this point is unavailing. In Guzman, we held that the
Commission “may rely on the medical panel’s opinion for only
those matters that are within the medical panel’s expertise—
medical diagnosis and restrictions,” id. ¶ 15 (emphasis added),
but the Commission erred in that case because it “relied upon
the medical panel’s determination that Guzman can work full
time in a light to medium work capacity,” id. ¶ 16. Here, the
Commission did not rely on the medical experts’ opinion on
whether Watson could or could not work. Rather, the
Commission simply analyzed the essential functions of the jobs
for which she was qualified in conjunction with the restrictions
the medical panel placed on her. This is permissible.
20200231-CA 11 2020 UT App 170Watson v. Labor Commission
her from performing the essential functions, as explained by
Expert, “of the work activities for which [she had] been qualified
until the time of [her] accident.” See id.¶23 Therefore, even though another conclusion “from the
evidence is permissible,” such as the one Watson puts forth, we
cannot disturb the Commission’s ultimate finding on this claim
because it was based on substantial evidence. See Pritchard v.
Labor Comm'n, 2019 UT App 184, ¶ 10, 453 P.3d 677 (quotation
simplified).
II.
¶24 We next address Horizon’s two challenges to the
Commission’s decision. First, Horizon attacks the Commission’s
factual finding that “Watson hurriedly bent down and extended
her arms outward while jerking her head up and to the left.”
Horizon asserts that the “Commission’s findings are ambiguous
on whether the two exertions occurred simultaneously, or
whether they were two distinct separate exertions.” Horizon
argues that “to the extent the . . . Commission found the two
exertions to have occurred simultaneously, the Commission’s
findings are not supported under a substantial evidence
standard of review” because “[t]he record clearly show[s] that
the actions did not occur simultaneously; rather the two
exertions in question . . . were two distinct and separate actions
unrelated to each other.” Horizon’s attempt to finely parse the
Commission’s findings on this point is unavailing. Watson
testified that while “in the process of setting [Toddler] on the
chair [her] arms were extended,” she “noticed that the shower
nozzle was not down where [she] could get it,” and she then
“jerked [her] head up to the left.” This testimony supported the
Commission’s finding that the two exertions occurred
simultaneously. Therefore, based on this testimony, “under the
substantial evidence standard of review, examining the whole
record,” we “determine . . . a reasonable mind might accept as
adequate the evidence supporting the [Commission’s] decision.”
See Quast v. Labor Comm'n, 2017 UT 40, ¶ 15, 424 P.3d 1520200231-CA 12 2020 UT App 170Watson v. Labor Commission
(quotation simplified). Accordingly, we decline Horizon’s
invitation to invalidate the Commission’s decision on this basis.
¶25 Second, Horizon claims that the Commission “incorrectly
concluded that . . . Watson’s exertions were unusual and
extraordinary when compared with the usual wear and tear and
exertions of nonemployment life.” Under Utah’s Workers’
Compensation Act, an employee “who is injured . . . by accident
arising out of and in the course of the employee’s employment”
is entitled to benefits. See Utah Code Ann. § 34A-2-401(1)
(LexisNexis 2019). Thus, “an injury is compensable only where
the employee can prove that the injury was by accident and that
there is a causal connection between the injury and the
employment.” White v. Labor Comm'n, 2020 UT App 128, ¶ 12,
474 P.3d 493 (quotation simplified). The causal connection
element requires a showing of both medical and legal causation.
JBS USA v. Labor Comm’n, 2020 UT App 86, ¶ 14, 467 P.3d 905.
Although an employee may generally establish both forms of
causation upon demonstrating “by evidence, opinion, or
otherwise that the stress, strain, or exertion required by his or
her occupation led to the resulting injury or disability,” id.(quotation simplified), “where the claimant suffers from a
preexisting condition which contributes to the injury, an unusual
or extraordinary exertion is required to prove legal causation,”
Allen v. Industrial Comm'n, 729 P.2d 15, 26 (Utah 1986). Under
this heightened standard, “[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.” Id. at 25. In making this determination, we apply an
“objective standard of comparison,” focusing “on what typical
nonemployment activities are generally expected of people in
today’s society.” Id. at 26. This inquiry “involves two steps: first,
we must characterize the employment-related activity that
precipitated the employees’ 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.
20200231-CA 13 2020 UT App 170Watson v. Labor Commission
¶26 Here, Watson entered Toddler’s home and immediately
came upon an unexpected medical emergency. Toddler was
covered in excrement that could have had life-threatening
consequences if it entered her tracheotomy tube. Immediately,
Watson picked up Toddler, who weighed 25 pounds, and
rushed up a flight of stairs to a bathroom to clean her off.
Toddler’s syndrome, which caused her body to be twisted, made
the act of carrying Toddler much more difficult than that of
carrying a toddler who did not suffer from the syndrome.
Making matters worse, Toddler was covered in excrement,
which made her slippery. Once in the bathroom, Watson had to
sidestep into an area about 18 inches wide between the toilet and
the bathtub to place Toddler in the bathtub. Watson injured her
neck when she, holding Toddler, extended her arms out while
simultaneously attempting to keep excrement from entering
Toddler’s tracheotomy tube, keeping from dropping her, and
finding the showerhead.
¶27 With the totality of the circumstances surrounding
Watson’s injury in mind, we next determine whether Watson’s
exertions and the surrounding circumstances were objectively
unusual or extraordinary. Of course, the medical crisis that
Watson confronted was well beyond what is ordinarily
confronted in everyday life. Few people outside the nursing
profession would ever be called upon to deal with such an
emergency. But Horizon argues that Watson’s exertions were not
unusual or extraordinary for purposes of Allen analysis because
they “are similar to pausing while lowering a box, tire, baggage,
pot roast, or small child, then quickly turning one’s head such as
to respond to a ringing telephone, oncoming traffic, other
passengers on the train, a cooking timer on the counter, or other
children in the room.” Horizon contends that “the only intense
exertion to be analyzed in this matter is the quick movement of
the head” while lowering an object weighing 25 pounds, and not
the exigent circumstances Watson faced. Horizon essentially
asks us to abandon the requirement to consider the totality of the
circumstances that led to Watson’s injury, which would be
contrary to our case law. See Murray, 2013 UT 38, ¶ 47 (“[O]ur
20200231-CA 14 2020 UT App 170Watson v. Labor Commission
decision in Allen ultimately considered the totality of the
circumstances, including the employee’s exertions and the
workplace conditions.”).
¶28 “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.
Here, Watson’s injury involved lifting an amount of weight—25
pounds to be exact—that on its own would not typically satisfy
the heightened standard. See Allen, 729 P.2d at 26 n.8 (“The usual
wear and tear of life . . . certainly includes lifting objects
weighing 20 pounds such as bags of golf clubs, minnow pails,
and step ladders.”) (quotation simplified). The weight itself is
not the end of the analysis, however, as we must determine
whether, under the totality of the circumstances facing Watson,
her exertions were unusual or extraordinary.
¶29 Two of our previous cases where we have held the actions
of the employee to be unusual or extraordinary are instructive
here. First, in Peterson v. Labor Commission, 2016 UT App 12, 367
P.3d 569, Peterson was injured when she was twisting around
and “reaching with her right arm to remove a [16-pound] tray of
cakes from a rack located directly behind her work table . . .
positioned about shoulder-height on the rack.” Id. ¶ 3. We held
that this injury resulted from an unusual and extraordinary
exertion due to the “awkward manner that Peterson lifted” the
otherwise insignificant amount of weight. Id. ¶ 15. Second, in
Oceguera v. Labor Commission, 2020 UT App 83, 468 P.3d 544,
Oceguera suffered a knee injury while she was rushing from
sewing table to sewing table when her foot slipped off a foot
pedal, which “had no grip tape and was covered by a stray piece
of cloth,” after she applied “significant pressure.” Id. ¶ 23. We
held that while “ordinary people in non-employment life
sometimes find it necessary to depress foot pedals using
‘significant pressure,’ and sometimes find it necessary to hurry[,]
. . . most people do not encounter those things very often in
non-employment life, especially at the same time.” Id. ¶ 24. We
explained that “the unanticipated manner in which her foot
20200231-CA 15 2020 UT App 170Watson v. Labor Commission
slipped off of the pedal,” due to the stray piece of cloth on the
pedal with no grip tape, was the “most significant” piece of
evidence and that “[e]ncountering a pedal with those
characteristics was unusual and extraordinary.” Id. ¶ 25.
¶30 Considering the totality of the circumstances that led to
Watson’s injury, we have no difficulty concluding that her
exertions were at least as unusual or extraordinary as the
circumstances in these cases. Although 25 pounds is not an
unusual amount of weight for an adult to carry, the medical
emergency Watson faced and the awkward way in which
Watson had to hold Toddler, in such a small space, rendered the
action objectively unusual or extraordinary, and not something
we would expect of people in typical nonemployment life. The
extraordinariness of the situation was magnified by Toddler’s
body being twisted as a result of a debilitating syndrome and
slippery due to being covered with excrement, and by Watson
having to look up for the showerhead all the while being careful
not to drop Toddler or allow excrement into her tracheotomy
tube. Watson’s exertions, therefore, were at least as unusual and
awkward as those in Peterson, where the worker was twisting
while reaching for a 16-pound tray of cakes, and were certainly
performed under far more strenuous and consequential
circumstances because if Watson dropped what she was holding,
a child could have died, whereas in Peterson only a few cakes
would have been ruined. And while Watson’s exertions may be
superficially similar to “lowering a box, tire, baggage, pot roast,
or small child, then quickly turning one’s head such as to
respond to a ringing telephone, oncoming traffic, other
passengers on the train, a cooking timer on the counter, or other
children in the room” as Horizon suggests, the exigency of the
circumstances Watson confronted takes it well beyond these
normal activities.
¶31 In doing these normal activities, people are not often in
such an unusual and extraordinary position as the one Watson
was in, having to hold the object out in front of her in a cramped
space while the object is slippery and difficult to hold and then
20200231-CA 16 2020 UT App 170Watson v. Labor Commission
having to look around, all the while knowing if the object is
dropped catastrophic, life-threatening consequences would
follow. See JBS USA v. Labor Comm'n, 2020 UT App 86, ¶¶ 3, 16,
18–19, 467 P.3d 905 (holding that the employee’s act of “jumping
away from [a burning semi-truck] at a height of approximately
40 inches” constituted “exigent circumstances” that made the
exertion unusual or extraordinary). Again, Oceguera is
instructive. There, the employee was undertaking actions that
people do in everyday life—depressing foot pedals and
hurrying—but she was doing both of those actions in a rushed
manner and then was presented with an unexpected
circumstance—a slippery foot pedal. Likewise, we expect people
in everyday life to deal with carrying objects weighing 25
pounds and having to simultaneously look around. But we do
not expect people in everyday nonemployment life to have to
carry medically fragile human beings of such weight while
dealing with the extraordinary circumstances Watson faced. As
in Oceguera, Watson was presented with an unanticipated
situation while in a hurry, and while under circumstances that
were more fraught than those in Oceguera. See American Roofing
Co. v. Industrial Comm'n, 752 P.2d 912, 915 (Utah Ct. App. 1988)
(holding that “the weight, together with the manner in which [the
employee] lifted the bucket and the fact that the bucket snagged,
combined to characterize [the] action as unusual or
extraordinary”) (emphasis added). 6
6. At the conclusion of briefing, Horizon called our attention to
White v. Labor Commission, 2020 UT App 128, 474 P.3d 493. This
decision does not require a different result. In White, the
employee was injured while “walking backward, focused on a
task other than the mere act of walking, and then stumbling on a
protruding object, shifting his weight, and stabilizing himself.”
Id. ¶ 22. We held that this activity was not unusual or
extraordinary because “[p]eople in everyday life are generally
expected to multitask while walking and to steady themselves
when stumbling on something unexpected in their path.” Id. In
(continued…)
20200231-CA 17 2020 UT App 170Watson v. Labor Commission
¶32 Based on the totality of the circumstances and our case
law, we conclude that Watson’s “employment contributed
something substantial to increase the risk [she] already faced in
everyday life because of [her pre-existing] condition,” See Allen,
729 P.2d at 25, and she was therefore entitled to an award of
temporary total disability benefits and medical expenses.
CONCLUSION
¶33 Substantial evidence supported the Commission’s
determination that Watson did not satisfy all the required
statutory elements to be awarded permanent total disability. The
Commission correctly determined that Watson satisfied the
heightened Allen standard of legal causation to be awarded other
benefits, however, and substantial evidence supported its factual
determinations underlying that determination. Therefore, we
decline to disturb the Commission’s order.
(…continued)
contrast, we do not expect people in everyday life to deal with
exertions like those undertaken by Watson, as previously
detailed.
20200231-CA 18 2020 UT App 170