White v. Labor Commission , 2020 UT App 128 ( 2020 )

2020 UT App 128THE UTAH COURT OF APPEALS
SHAWN WHITE,
Petitioner,
v.
LABOR COMMISSION AND GOLDEN EMPIRE MANUFACTURING,
Respondents.
Opinion
No. 20190782-CA
Filed September 11, 2020
Original Proceeding in this Court
Loren M. Lambert, Attorney for Petitioner
Bret A. Gardner and Kristy L. Bertelsen, Attorneys
for Respondent Golden Empire Manufacturing
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.
POHLMAN, Judge:
¶1 Shawn White seeks judicial review of the Labor
Commission’s decision denying him workers’ compensation
benefits. He raises several arguments on review, including that
the Commission’s Appeals Board (the Board) erred in
concluding that he had not demonstrated that his injury was
legally caused by his employment. For the reasons discussed
below, we decline to disturb the Board’s decision.
BACKGROUND
¶2 In 2016, White sustained a left knee injury while working
for his employer, Golden Empire Manufacturing (Golden). He
later applied for a hearing with the Labor Commission in
White v. Labor Commission
relation to his injury, claiming entitlement to, among other
things, temporary total disability compensation and permanent
partial disability compensation under the Utah Workers’
Compensation Act. White claimed that while inspecting a steel
beam resting on two welding tables, he injured his left knee
when he “hit [his] foot” on a “block of wood that was six inches
tall,” causing his “foot and knee to twist.” From this, he claimed
that he sustained “multiple tears in the meniscus in [his] left
knee.”
¶3 As part of discovery, Golden scheduled a medical
evaluation (ME) of White. See generally Utah Code Ann.
§ 34A-2-602(1) (LexisNexis 2019) (providing that “an
administrative law judge may require an employee claiming the
right to receive compensation under this chapter to submit to a
medical examination at any time”); Utah Admin. Code
R602-2-1(F)(3) (“Upon reasonable notice, the respondent may
require the petitioner to submit to a medical examination by a
physician of the respondent’s choice.”). Before White would
agree to submit to the ME, however, White requested several
revisions to the physician’s consent form, and he declined to sign
the disclosure authorization form. In response, Golden moved to
compel White’s attendance at the ME and his cooperation in
completing and signing the forms. The Administrative Law
Judge (the ALJ) granted Golden’s motion, ordering White to
“attend and cooperate” with the ME, including “expect[ing] to
sign” forms required by the ME examiner as part of the exam.
¶4 Following an evidentiary hearing on his claim, the ALJ
referred the case to a medical panel. Noting that there was a
medical dispute about whether White had a preexisting disease
in his left knee that contributed to his left knee injury, the ALJ
instructed the medical panel to answer whether the work
accident aggravated or contributed to any preexisting condition.
The medical panel opined that before the accident, White had
been suffering from “chronic degenerative joint disease of the
20190782-CA 2 2020 UT App 128White v. Labor Commission
left knee,” which had been “symptomatic prior to the work
accident,” and that the accident “likely aggravated his chronic
pre-existing left knee” condition. On this basis, and using the
Utah Labor Commission’s 2006 Supplemental Impairment
Rating Guides (USIRG), the panel opined that the accident
caused a “2% lower extremity impairment, for a whole person
impairment of 1%.” Although White timely objected to the
medical panel’s use of the USIRG and its impairment rating
opinion, he did not object to the panel’s opinion that he had a
preexisting condition that contributed to his injury.
¶5 In his Findings of Fact and Conclusions of Law, the ALJ
admitted the medical panel report into evidence and found that
“a preponderance of the evidence supports the conclusions of
the medical panel report.” In particular, the ALJ determined that
the “panel’s conclusion that Mr. White aggravated his
preexisting left knee condition” was supported by the evidence,
as was the panel’s impairment rating conclusion. Based on this,
the ALJ “adopt[ed] the conclusions of the medical panel report.”
¶6 On the issue of legal causation, the ALJ determined that a
heightened standard applied because White suffered from a
preexisting knee condition that contributed to the injury. See
Allen v. Industrial Comm’n, 729 P.2d 15, 25–27 (Utah 1986)
(“[W]here the claimant suffers from a preexisting condition
which contributes to the injury, an unusual or extraordinary
exertion is required to prove legal causation.”). In applying that
standard, the ALJ first described the activity leading to White’s
injury:
Mr. White held a tape measure in his right hand,
which was hooked on the end of a beam, and he
was walking backwards and sideways, while
maintaining tension on the measuring tape. While
walking backwards, Mr. White’s right leg tripped
on a sticker (a block of wood that was six inches
20190782-CA 3 2020 UT App 128White v. Labor Commission
tall), which caused him to shift his weight to his
left knee, resulting in a twisting and grinding
motion in the left knee. Mr. White did not strike his
left knee or any part of his body on any piece of
equipment or the ground. Mr. White did not fall to
the ground after he tripped.
The ALJ next considered whether the work activity that caused
the injury was “objectively unusual or extraordinary.” He
determined that White’s tripping and stumbling was not an
unusual or extraordinary exertion above that encountered in
everyday life. On that basis, the ALJ concluded that White had
not “satisf[ied] the higher standard of legal causation under
Allen” and dismissed his application.
¶7 White moved for Board review of the ALJ’s decision.
Among other things, he argued that the ALJ’s legal causation
analysis was faulty. He also argued that, while the ALJ had
authority to order his attendance at an ME, he did not have
authority to require him to sign the associated release forms.
¶8 The Board adopted the ALJ’s findings of fact, determined
the legal causation issue “to be dispositive” of the case, and
declined to reach the other issues White raised. Like the ALJ, the
Board determined that White had a preexisting condition in his
left knee and that, accordingly, “the more stringent standard of
legal causation” applied. And “[a]fter reviewing the evidence
presented along with the totality of the circumstances
surrounding the work accident,” the Board concluded that the
work activity “did not involve an unusual or extraordinary
exertion above the usual wear and tear of nonemployment life.”
Specifically, the Board stated that “[i]t is not unusual for an
individual to take steps backwards and then stumble and shift
one’s weight to avoid falling down.” On this basis, the Board
affirmed the ALJ’s decision to deny White’s claim for benefits.
20190782-CA 4 2020 UT App 128White v. Labor Commission
¶9 White seeks review of the Board’s decision to deny
benefits.
ISSUES AND STANDARDS OF REVIEW
¶10 White raises two issues for review. First, he argues that
the Board should have concluded that he established legal
causation because the work activity leading to his injury was
unusual or extraordinary as compared to conditions
encountered in everyday life. This “presents a traditional mixed
question of law and fact.” Murray v. Labor Comm’n, 2013 UT 38,
¶ 24, 308 P.3d 461. Because “the ultimate question is the legal
effect of the facts” with respect to whether the activity was
objectively unusual or extraordinary, we are “in a better position
to analyze” the issue than the Board, and our review is
accordingly non-deferential. Id. ¶¶ 40, 48; accord Oceguera v.
Labor Comm’n, 2020 UT App 83, ¶ 8, 468 P.3d 544.
¶11 Second, White argues that the ALJ erred by requiring him
to sign the consent and disclosure forms attendant to the ME.
More specifically, White challenges the ALJ’s authority to
“force” him to “enter a personal contract with [Golden] and its
[ME] examiner” and “relinquish his constitutional privacy,
common-law, and tort rights” by requiring his cooperation with
the forms. This presents a question of law, which we review for
correctness. See Wasatch Elec. Dynalectric Co. v. Labor Comm’n,
2020 UT App 20, ¶ 10, 460 P.3d 1049. 1
1. White also challenges the constitutionality of the USIRG and
the propriety of the impairment rating assigned to him.
However, because we decline to disturb the Board’s legal
causation conclusion and denial of benefits, we have no occasion
to reach these issues.
20190782-CA 5 2020 UT App 128White v. Labor Commission
ANALYSIS
I. Legal Causation
¶12 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). 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. See id.; see also Allen v. Industrial
Comm’n, 729 P.2d 15, 18 (Utah 1986); Nyrehn v. Industrial Comm’n,
800 P.2d 330, 334 (Utah Ct. App. 1990). As to causation, an
employee must specifically “establish that the conditions or
activities of his job were both the medical cause and the legal
cause of his injury.” Murray v. Labor Comm’n, 2013 UT 38, ¶ 45,
308 P.3d 461; see also Allen, 729 P.2d at 25.
¶13 White challenges the Board’s legal causation conclusion.
When the employee does not have a preexisting condition that
causally contributed to the workplace injury, the “medical and
legal causation requirements are one and the same.” See Murray,
2013 UT 38, ¶ 45. The employee must “show by evidence,
opinion, or otherwise that the stress, strain, or exertion required
by his or her occupation led to the resulting injury or disability.”
See Allen, 729 P.2d at 27; accord Murray, 2013 UT 38, ¶ 45. But
when, as here, the employee has a contributing preexisting
condition, the employee must satisfy a heightened legal
causation standard. See Murray, 2013 UT 38, ¶ 46. This standard
requires the employee to prove that “the employment
contributed something substantial to increase the risk he already
faced in everyday life because of his [preexisting] condition.”
Allen, 729 P.2d at 25.
¶14 As our supreme court explained in Murray, evaluating
legal causation under this heightened standard is a two-step
20190782-CA 6 2020 UT App 128White v. Labor Commission
process: “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.” 2013 UT 38, ¶¶ 46, 48. “[T]he first step is a
matter of fact,” looking to the totality of the circumstances
surrounding the employee’s injury, “including the employee’s
exertions and the workplace conditions.” Id. ¶¶ 47–50. The
second step requires “compar[ing] the activity that precipitated
the employee’s injury with the usual wear and tear and exertions
of nonemployment life,” focusing on “what typical
nonemployment activities are generally expected of people in
today’s society, not what this particular claimant is accustomed
to doing.” Id. ¶¶ 48, 52 (cleaned up).
¶15 We undertake both steps mindful that the heightened
standard “is not meant to prevent workers with preexisting
conditions from recovering benefits.” Fastenal v. Labor Comm’n,
2020 UT App 53, ¶ 14, 463 P.3d 90 (cleaned up). Rather, the
heightened standard is employed as a method “to distinguish
those injuries which coincidentally occur at work because a
preexisting condition results in symptoms which appear during
work hours without any enhancement from the workplace.”
Murray, 2013 UT 38, ¶ 46 (cleaned up); Allen, 729 P.2d at 25
(stating that the heightened legal causation standard “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”).
¶16 White contends that the circumstances surrounding his
accident meet the heightened legal causation standard and that
the Board erred in deciding otherwise. He claims that the
workplace conditions, combined with the “extreme” twisting
and grinding mechanism of the injury, satisfied the higher
standard. The Board concluded, after “reviewing the evidence
presented along with the totality of the circumstances
20190782-CA 7 2020 UT App 128White v. Labor Commission
surrounding the work accident,” that the “work activity in
question did not involve an unusual or extraordinary exertion
above the usual wear and tear of nonemployment life.” We
agree.
¶17 To determine whether the Board erred in its legal
causation conclusion, we must first “characterize[] the totality”
of White’s employment-related activity that precipitated his
injury. See Murray, 2013 UT 38, ¶¶ 48, 51. The facts surrounding
the activity as found by the Board are not in dispute on appeal. 2
White was injured while he was inspecting and measuring a
steel beam for Golden. The steel beam was “resting on two
welding tables,” and White measured the beam by “walking
backwards while keeping tension in the [measuring] tape.” As
he did so, White’s right leg hit a block of wood “about six inches
high,” which led to “a twisting and grinding motion of [White’s]
left knee” as White “shifted his weight to avoid falling.” White
was able to avoid falling or striking his left knee.
2. White argues that the Board focused on the “injury as being a
‘trip and stumble,’ without regard to the totality of the
circumstances.” In making this argument, White relies on
allegedly “uncontested” facts that were not found by the Board.
For example, he claims that he “was crouched” “at an almost 90
degree angle” while walking backwards, that he was “in a
confined space, in which there was a 6-inch gap between him
and the obstacle that caused him to stumble,” and that there
“were steel beams causing hazards for a more serious injury to
either side of him.” But White has not identified where in the
record some of these alleged facts were presented, nor has he
persuaded us that it is appropriate for us to simply accept them
as established even though the Board did not. Further, White has
not otherwise challenged the adequacy of the Board’s factual
findings in this review. We therefore hold him to the facts as
found by the Board in evaluating legal causation.
20190782-CA 8 2020 UT App 128White v. Labor Commission
¶18 We must next “determine whether [the] activity,” in light
of the totality of the circumstances, “is objectively unusual or
extraordinary.” Id. ¶ 48. “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. For example, in Miera v. Industrial Commission, 728 P.2d
1023 (Utah 1986), our supreme court determined that the activity
of “jump[ing] into an eight-foot hole from a four-foot platform at
thirty-minute intervals” constituted a “considerably greater
exertion than that encountered in non-employment life,” id. at
1024–25, and in Stouffer Foods Corp. v. Industrial Commission, 801
P.2d 179 (Utah Ct. App. 1990), this court concluded that
“applying repeated or constant pressure to the grips of high-
pressure hoses . . . for hours at a time is not a typical non-
employment activity,” id. at 183–84 (cleaned up).
¶19 This court has also deemed certain employment activities
to be unusual or extraordinary if they occur in the context of
“peculiar” or “exigent” circumstances. For example, in Peterson
v. Labor Commission, 2016 UT App 12, 367 P.3d 569, we
concluded that “although [the claimant] was not lifting a great
amount of weight”—sixteen pounds—“when she was injured,”
the “awkward” and “peculiar manner” of lifting the weight—
“reach[ing] behind her with her arm extended ‘like a waiter,’
plac[ing] her palm under the tray, lift[ing] the cake tray from
shoulder height, and return[ing] forward while lowering the tray
to her work table with her supinated and extended arm”—
rendered the work activity unusual and extraordinary. Id. ¶¶ 15–
16. And, recently, in JBS USA v. Labor Commission, 2020 UT App
86, 467 P.3d 905, we concluded that the employee’s act of
“jumping away from” a semi-truck from a height of
“approximately 40 inches,” in “exigent circumstances” that
caused the claimant “to hurry and prevented her from taking the
precautionary measures not to land awkwardly,” constituted an
unusual exertion sufficient to satisfy the heightened legal
causation standard. Id. ¶¶ 3, 16–19.
20190782-CA 9 2020 UT App 128White v. Labor Commission
¶20 Our supreme court’s decision in Murray is particularly
instructive and applicable to the present case. There, the
claimant, who suffered from a preexisting back condition,
injured his back during work as he “bent over the edge of [a]
boat . . . at a thirty-five to forty degree angle, . . . holding [a]
cable and [a] lock in his left hand and entering the combination
with his right” while “wearing a fifteen-pound service belt and a
one-pound inflatable life jacket.” 2013 UT 38, ¶¶ 2–4, 49. A “five-
to six-inch wave from another boat’s wake unexpectedly rocked”
the claimant’s boat, “causing him to lose his balance,”
whereupon he steadied himself “by shifting his right foot against
the side of the boat, grabbing the side of the boat with his right
hand, and twisting his body.” Id. ¶¶ 49–50.
¶21 Recognizing that the totality of the circumstances
surrounding the claimant’s injury included “both exertional and
nonexertional” activities, our supreme court concluded that the
activities were not unusual or extraordinary. Id. ¶¶ 52–53. The
court focused on the objective question of “what typical
nonemployment activities are generally expected of people in
today’s society.” Id. ¶ 52 (cleaned up). The court observed that,
in everyday life, people are generally “expected to withstand
minor force,” such as that presented through the unexpected
wave. Id. ¶¶ 52–53. The court then compared the activities at
issue to activities associated with traveling, such as carrying
heavy, clumsy luggage and encountering “bumpy rides in
planes or buses,” yet nevertheless “maintain[ing] and
regain[ing] . . . balance in the process.” Id. ¶ 53. And the court
concluded, despite the claimant’s “awkward position” and the
“service belt and jacket he was wearing when the small wave
rocked his boat,” that the activities and circumstances at issue
were nevertheless of a kind usually encountered in everyday
life. Id. ¶¶ 52–53. On this basis, the supreme court affirmed our
decision upholding the Commission’s order denying benefits. Id.
¶ 53.
20190782-CA 10 2020 UT App 128White v. Labor Commission
¶22 In the present case, we likewise conclude that the work
activities at issue were “typical nonemployment activities . . .
generally expected of people in today’s society.” See id. ¶ 52
(cleaned up). White 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. As in Murray, these activities are not like
those our courts have typically determined to be unusual or
extraordinary, such as those involving “jumping, lifting great
weight, or repetition.” Id. ¶ 51. Nor do they involve “exigent” or
“peculiar” circumstances. See JBS USA, 2020 UT App 86, ¶¶ 16–
19; Peterson, 2016 UT App 12, ¶ 16. Rather, these activities are
comparable to those “generally expected” of persons in
everyday life. Murray, 2013 UT 38, ¶ 52 (cleaned up). People in
everyday life are generally expected to multitask while walking
and to steady themselves when stumbling on something
unexpected in their path. Indeed, it is not unusual for persons
undertaking simple home improvement or gardening projects to
encounter circumstances similar to those surrounding White’s
injury—those involving measuring-like tasks, inadvertent
stumbling on objects in the way, and a need to steady
themselves before continuing on. The traveling example in
Murray is also apropos, because when traveling, passengers are
routinely expected to navigate narrow aisles while handling
clumsy, heavy luggage—articles much more difficult to handle
than a tape measure—and to steady themselves upon being
jostled or meeting an unexpected force. See id. ¶ 53.
¶23 In short, we conclude that, given the totality of the
circumstances present in this case, the “whole of [White’s]
accident entailed nothing unusual or extraordinary that could be
presumed to have contributed something substantial to increase
the risk of injury.” See id. (cleaned up). Accordingly, we decline
to disturb the Board’s order affirming the ALJ’s decision and
denying benefits.
20190782-CA 11 2020 UT App 128White v. Labor Commission
II. Consent and Disclosure Forms
¶24 White also challenges the ALJ’s order 3 that, in association
with attending the ME, he was expected to sign consent and
disclosure forms required by the examiner “as part of his
cooperation with the [ME].” He claims that the ALJ had “no
legal authority” to “force [him] to enter a personal contract with
[Golden] and its [ME] examiner” or “to waive” certain “tort,
civil, and privacy” rights “when [he was] subjected to [an ME].”
On this basis, he asks that we “enjoin all ALJs from requiring
petitioners to contract with [MEs] to waive” their rights when
subjected to an ME.
¶25 White has not persuaded us that he is entitled to the relief
he seeks. To begin with, White has not shown that he suffered
harm from being ordered to cooperate in the discovery process,
including submitting to the ME and being expected to sign “a
particular disclosure form” required by the examiner. We are
unable to grant relief from an agency action unless the alleged
error “substantially prejudiced” the “person seeking judicial
review,” Utah Code Ann. § 63G-4-403(4) (LexisNexis 2019), and
White carries the burden to demonstrate substantial prejudice,
see Macfarlane v. Career Service Review Office, 2019 UT App 133,
¶¶ 42–43, 450 P.3d 87. “A person is substantially prejudiced by
3. The ALJ ordered White’s cooperation in signing the consent
and disclosure forms associated with the ME. In his motion for
Board review, White argued that by requiring him to sign the
forms, the ALJ improperly forced him to waive common law,
tort, and constitutional privacy rights. The Board declined to
reach this issue in its affirmance of the ALJ’s decision to deny
benefits, determining that the legal causation issue was
dispositive and that the Commission in general had no authority
to consider constitutional challenges. As a result, the order on
which this challenge is based is the ALJ’s, not the Board’s.
20190782-CA 12 2020 UT App 128White v. Labor Commission
an agency action if that challenged action was not harmless.”
Foye v. Labor Comm’n, 2018 UT App 124, ¶ 31, 428 P.3d 26. “An
error will be harmless if it is sufficiently inconsequential that
there is no reasonable likelihood that the error affected the
outcome of the proceedings.” Smith v. Department of Workforce
Services, 2010 UT App 382, ¶ 17, 245 P.3d 758 (cleaned up).
¶26 While White details the problems he perceives with the
consent and disclosure forms and generally lists various ways in
which the forms purported to require him to contract with the
ME examiner and to waive certain rights, he does not identify a
legal basis for the exceptional remedy he seeks, nor does he
demonstrate any harm.
¶27 First, while White generally asserts that the ALJ had no
authority to force him to waive certain of his rights, he provides
no authority or analysis suggesting why—or, more
fundamentally, whether—it would be at all appropriate for us to
take the rather extraordinary step of entering a permanent
injunction barring “all ALJs” from requiring any petitioner to
sign a consent or disclosure form in conjunction with an ME. See
generally System Concepts, Inc. v. Dixon, 669 P.2d 421, 425 (Utah
1983) (“Injunction, being an extraordinary remedy, should not be
lightly granted . . . .”). For this reason alone, his argument fails.
¶28 Second, even if we construe White’s argument as a
challenge to the Board’s ultimate determination, he has not
shown that the ALJ’s order affected the outcome of his case. For
one, it is unclear from the record whether White was required to
sign, and did sign, the very forms he objected to in completing
the ME. It is certainly possible that he was asked to sign them
and he did. But in his opening brief’s addenda, White provides
only the unsigned, marked-up version of the consent form and
the crossed-out version of the disclosure form. He does not
otherwise direct us to signed forms in the record, and in our
20190782-CA 13 2020 UT App 128White v. Labor Commission
review, we have been unable to find any confirmation that the
forms he objected to were eventually signed without alteration.
¶29 Further, even if we assume White signed the very same
consent and disclosure forms he objected to, he makes no
argument that signing the forms affected the merits of his case,
the medical panel’s evaluation of his injury, or the ALJ’s and the
Board’s decisions about his entitlement to benefits. Similarly, he
makes no argument that by signing the consent form, he was
prevented (or had a substantiated basis from which to anticipate
being prevented) from pursuing actual legal action and relief
related to any harms he suffered during the ME itself. In short,
White has not shown that he suffered actual prejudice by being
ordered to cooperate with the ME process.
¶30 For these reasons, we decline to grant White the relief he
seeks on this issue.
CONCLUSION
¶31 We decline to disturb the Board’s decision to deny White
benefits. White has not established that the work activities at
issue satisfied the heightened legal causation standard
applicable to the circumstances. White also has not shown any
harm arising out of or entitlement to the relief he seeks
regarding the ME consent and disclosure forms.
20190782-CA 14 2020 UT App 128