Industrial Reports

2003

DENIAL OF REVIEW
Case Type --WA; Work-related injury
Case Name --Jim Reiter vs. Lagoon Corporation and Workers' Compensation Fund
Case Number --00-0937
Court/Judge --This order was issued by the Labor Commission's Appeals Board.
Verdict/Settlement --Order, 11/02
Amount --The Board found that the everyday-life activities suggested by Lagoon as comparable to claimant's actions that led to his injury are not in fact similar in the force and intensity of exertion required to perform them. Claimant's work activities therefore satisfied the Allen test (see below) and he is entitled to workers' compensation benefits for his injury. The Board therefore upheld the ALJ's award of benefits.
Injuries --Claimant suffered ruptured profundus and sublimis tendons of his right small finger. He had either an old injury or a pre-existing injury at the same location.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Floyd Holm
Facts/Contentions --Claimant was injured while repairing one of Lagoon's go-carts, using an oversize wrench to remove a 3/4" nut that had frozen in place. He said he used all his force to try to turn the nut with his right hand, but the wrench slipped off the nut and his hand struck the concrete surface, whereupon he felt a tear in the hand. The ALJ who adjudicated his case found claimant was injured in the course and scope of his employment with Lagoon and awarded him workers' compensation benefits.
Employer/carrier objected to the ALJ's decision, arguing that claimant's activities leading up to his injury did not satisfy the Allen test. Utah case law (Allen) says that in order to claim workers' compensation benefits, an injured worker who has a pre-existing injury or condition at the site of the work injury must prove that the exertions which led up to the work injury exceeded those which a person might encounter in ordinary life. Lagoon contended that claimant's actions were similar to those a person might perform while changing a tire, lifting various items, or participating in sports. Claimant argued that his actions exceeded those required in any of the situations Lagoon mentioned, since the wrench was oversized and he was exerting all his force at the time of his injury.

DISCRIMINATION
Case Type --SD; Employment discrimination claim
Case Name --(Name of case withheld)
Case Number --8000559
Court/Judge --Hann
Verdict/Settlement --Order, 11/02
Amount --The ALJ found that claimant failed to prove factors related to age influenced the screening committee's decision. The ALJ therefore denied claimant's motion for summary judgment, granted employer's motion for summary judgment, and dismissed this claim with prejudice.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Assistant Utah Attorney General Bless Young
Facts/Contentions --Claimant contended that a Utah institution of higher education failed to hire him because of his age. Claimant, who has a BA in physics and an MA and a PhD in mathematics, sought a faculty position in the mathematics department. He was properly accredited, and had worked for one year as an assistant professor at each of two separate state universities and 10 years as an associate professor at a University in Canada; he also served 1-to-2-year visiting professorships at seven universities prior to applying for this position. He has declined offers of employment at two overseas universities and temporary instructor positions at two state universities, preferring instead to seek a permanent position as an assistant professor.
The university interviewed several applicants and hired a 28-year-old for the position. All four members of the screening committee were over 40 years of age, and they stated that claimant was qualified, but added that the person they hired was more qualified in that he had excellent teaching skills, was an active scholar, and was willing to spend time with students outside the classroom. The successful applicant also got along very well with the faculty and students. The committee noted that claimant's letters of recommendation were based on teaching experience from quite some time earlier, and they noted that his rapport with students and faculty was not as good as that of the successful candidate. Claimant has not worked actively in the classroom since 1991, and the teaching demonstration he did for the committee was considered poor. The committee members all denied that age was a factor in their decision.

FALL
Case Type --WA, SF; Work-related fall
Case Name --(Name of case withheld)
Case Number --2001037
Court/Judge --Hann
Verdict/Settlement --Order, 11/02
Amount --The ALJ found it reasonable to assume that employer attempted to keep claimant's injuries from being reported as industrial, creating the discrepancies in the medical record as to how the injuries occurred. The ALJ accepted the medical panel's report and found that claimant's neck and right shoulder problems are industrial in origin; the ALJ therefore ordered employer/carrier to pay claimant temporary total disability benefits of $360 per week beginning November 9, 2002, when he became unable to work because of his injuries; these benefits are to continue until claimant reaches medical stability. Employer/carrier must also pay claimant accrued temporary total disability benefits of $62,744.40 for his earlier periods of medical instability. The accrued portions of these awards are due and payable in a lump sum plus interest and less attorney's fees, which are to be deducted from these awards and paid directly to claimant's attorney. Employer/carrier must also pay all claimant's related medical expenses, and must further pay him accrued permanent partial disability benefits of $5,803.20 for his 6% related whole person impairment, plus interest and less attorney's fees as detailed above.
Injuries --Claimant suffered injuries to his clavicle, right arm, back, shoulder, neck, ribs and elbow. No fractures or dislocations were initially found, but later X-rays revealed multiple right-side rib fractures and a pneumothorax, pulmonary concussion with possible pneumonia, and hypoxia secondary to the right pneumothorax.
Attorney(s) - Plaintiff --Aaron J. Prisbrey, St. George
Attorney(s) - Defense --Elliot Morris
Expert Witness(es) --The ALJ referred this case to a medical panel chaired by Scott M. Smith, MD--orthopedist, because of the disparities in the medical record as to how the accident occurred.
Facts/Contentions --Claimant fell 45' from an extension ladder while painting a three-storey building about 50' tall in Cedar City. He said he was almost done with the job when the ladder twisted and began to fall away from the building, and he grabbed the ladder, hit the awning over the front of the building, and landed in the parking lot. Several people saw the fall and someone called the company owner, who arrived an hour later, while claimant was still lying in the parking lot. The owner told claimant to go home and he did; he phoned the next day to say he was too sore to come to work. The owner told claimant to seek medical care at the free medical clinic in Enterprise, Utah. The clinic referred him to a local hospital emergency room.
Employer/carrier contended that claimant failed to notify his employer of his injury at all. Utah law requires that an industrially injured worker must notify employer of the injury within 180 days of the accident that caused it. However, employer/carrier withdrew this contention at the hearing and the parties agreed that if claimant was found to have suffered an industrial injury, he would accept an award of three months of temporary total disability benefits and related medical expenses for his injury. The owner did not file a first report of injury with either his insurance carrier or the Labor Commission. Medical records showed claimant told hospital personnel he fell off a ladder while painting his father's one-storey house, but claimant later stated that he told this story because his employer asked him to, not wishing to have the injury reported as industrial so he would not have to pay the medical bills. The medical record also indicated that the doctors at the hospital felt a fall from a house would not explain the severity of claimant's injuries. Claimant reported continuing neck and shoulder pain and an ongoing tremor in his right arm after the fall, but employer/carrier contended that the pain was caused by unrelated degenerative changes in claimant's neck and shoulder and the tremor resulted from claimant's chronic alcohol abuse.
The medical panel found a causal connection between claimant's current problems and his industrial injury; the panel indicated that physical therapy would be helpful, and future treatment might reasonably include cortisone injections or even surgery for the shoulder pain if it proves intractable. The panel found claimant is not medically stable and awarded him a 6% combined related whole person partial impairment rating for the shoulder and neck injuries; however, the panel found the tremor was unrelated to the industrial accident.

WORK INJURIES
Case Type --WA; Work-related injuries
Case Name --(Name of case withheld)
Case Number --97886, 97898
Court/Judge --George
Verdict/Settlement --Order, 11/02
Amount --The ALJ accepted the medical panel's report and found claimant is entitled to accrued permanent partial disability benefits of $3,282.24 for his 4% related whole person permanent impairment; however, employer/carrier made some temporary total disability benefit payments to claimant after he attained medical stability for his shoulder injury; employer/carrier is therefore entitled to an overpayment credit of $4,638.21, to be applied against the award of permanent partial impairment benefits noted above; the remainder is to be applied against any further workers' compensation benefits awarded to claimant against this employer. The ALJ noted that employer/carrier is also entitled to an offset of $220 because claimant's temporary total disability benefits were computed based on his report that he had three children, rather than the two he actually had at the time of the shoulder injury. The ALJ dismissed the claims for the lower back and hip injuries with prejudice.
Injuries --Claimant suffered a right rotator cuff tear and underwent surgical repair, subacromial decompression and acromioclavicular resection. He also claimed he later sustained hip and low back injuries (disputed).
Attorney(s) - Plaintiff --David K. Smith
Attorney(s) - Defense --Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Expert Witness(es) --Because of conflicting medical testimony, the ALJ referred this case to a medical panel.
Facts/Contentions --Claimant stated that he injured his right shoulder first, and later his hip and low back, while he was at work.
Employer/carrier accepted liability for the shoulder injury, but disputed the amount of permanent partial disability compensation due claimant for his industrial whole person permanent partial impairment; employer/carrier also claimed it overpaid temporary total disability benefits, and the ALJ found the record indicated this claim was true. Employer/carrier argued that the alleged hip-low back injury did not occur or was not industrial. Employer/carrier produced a surveillance video taken after the alleged hip/back injuries, which showed claimant playing basketball and pushing a car uphill.
The medical panel felt claimant suffered a temporary industrial back spasm which stabilized within two weeks. The panel noted that claimant did not report further back pain following his initial post-injury evaluation until after he suffered a fall at home, when he again began to complain of symptoms. The panel gave claimant a 4% related whole persona partial impairment rating for the shoulder injury and found no further treatment was needed, although the earlier treatments were necessary. The ALJ noted that claimant displayed a tendency to exaggerate at his hearing, and this tendency impaired his credibility.

ORDER ON REMAND
Case Type --DS; Employment discrimination claim
Case Name --(Name of case withheld)
Case Number --8-00-0017
Court/Judge --This order was issued by Utah Labor Commissioner R. Ellertson
Verdict/Settlement --Order on remand, 11/02
Amount --The Commissioner noted that when a party files a motion for summary judgment, it is the moving party's obligation to establish all facts necessary to support such a judgment. The Commissioner found that in order to win its motion for summary judgment, DWS was therefore obligated to show that no position existed which claimant could fill given his disability. The Commissioner found DWS failed to meet this burden of proof; the Commissioner therefore reversed the verdict and remanded the case to the ALJ for further proceedings.
Attorney(s) - Plaintiff --David Holdsworth
Attorney(s) - Defense --H. Craig Bunker
Facts/Contentions --Claimant contended that the Division of Workforce Services (DWS) discriminated against him in the matter of his application for employment on account of disabilities related to his attention deficit hyperactivity disorder (ADHD). The Labor Division investigated, but found no reason to believe such discrimination had taken place. Claimant requested a de novo hearing before an ALJ, as is his right under Utah law. The ALJ accepted DWS's contention that claimant could not perform the duties required by the specific position he sought, even with a reasonable accommodation; the ALJ therefore granted DWS's motion for summary judgment. Claimant appealed, contending that the ALJ erred when she required claimant to identify a specific vacant position that he would be capable of performing. DWS did not respond to claimant's motion for review.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Juan D. Flores vs. Richard C. Spencer Enterprises aka Superior Car Wash and Workers’ Compensation Fund
Case Number --2001608
Court/Judge --Eblen
Verdict/Settlement --Order, 12/02
Amount --Basing her decision on the fact that both doctors agreed the rupture of the appendix was not caused or exacerbated by the strain of lifting, the ALJ dismissed this case with prejudice for lack of medical causation.
Injuries --Claimant suffered a ruptured appendix and underwent an appendectomy.
Attorney(s) - Plaintiff --David K. Smith
Attorney(s) - Defense --Lori Hansen
Expert Witness(es) - Plaintiff --Dr. Eric Anderson
Expert Witness(es) - Defense --Dr. Scott Leckman--independent medical examination
Facts/Contentions --Claimant stated that he was cleaning the car-wash bays at employer’s workplace. He was attempting to pull a grate from the floor, bending over and giving it a hard jerk to free it, when he heard a pop and felt a tearing sensation in his abdomen. He said the grate was about 3/8" thick and about 5 feet by 18 or 20 inches; he thought it weighed about 150 pounds. Claimant went home to rest, but his pain increased and he sought medical attention from an emergency room later the same day. He was diagnosed with ruptured appendicitis, and claimed the rupture of the appendix was brought on by the strain of attempting to lift the grate.
Claimant’s treating physician (Dr. Anderson) said he was unaware of trauma contributing to the rupture of the appendix and recommended a full search of the literature for any case histories where such a thing had occurred. Employer’s independent medical examination physician (Dr. Leckman) felt there was no medical causal relationship between lifting strain and appendix rupture. Claimant produced an article from the Journal of the American Medical Association which stated that such a rupture might be caused by physical exertion, but Dr. Anderson, while he said he found the article “fascinating reading,” noted that it was written in 1926, 80 years ago, and reflected the state of medical opinion at that time. Such opinion has since changed, he added, to reflect current medical knowledge that a ruptured appendix is caused by pressure created by infection within the diseased organ. He submitted a chapter from a more-current medical textbook to bolster this argument.
Since both physicians agreed that lifting strain cannot cause an appendix to rupture, the ALJ found no medical controversy existed and declined to refer the case to a medical panel.

DISCRIMINATION
Case Type --SD; Discrimination claim
Case Name --(Name of case withheld)
Case Number --8000684
Court/Judge --Eblen
Verdict/Settlement --Order, 12/02
Amount --In the absence of any evidence proving this claim, the ALJ dismissed it with prejudice.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Douglas L. Neeley, Manti
Facts/Contentions --Claimant is a member of two protected classes: she is female and is associated with (married to) a person with a disability. She was originally hired by respondent city to “work off” her water bill, and when she did good work, the city found other things for her to do. However, when the engine of a lawn mower she was using to mow the city park “blew up,” claimant was blamed and her mowing duties were terminated. She quit after her hours were reduced and later brought this discrimination claim, contending that the city council had promised to hire her full-time with benefits but instead discriminated against her because of her gender and her association with a disabled person.
The city mayor testified that the city council never approved hiring claimant full-time with benefits, and she never had the responsibility that was given to the three full-time city employees. The mayor contended that claimant was terminated from her lawn-mowing job after investigation showed she did not operate the mower correctly.

ORDER ON MOTION TO DISMISS
Case Type --WA, OC; Ongoing work-related injury claim
Case Name --Taunie Wiggins vs. Dillards and Fidelity and Guaranty Insurance
Case Number --2001676
Court/Judge --Eblen
Verdict/Settlement --Order, 12/02
Amount --The ALJ found that because the date of injury was incorrect on the application, the declaration of default should be set aside, and the ALJ did this. However, the ALJ noted that as much delay was caused by employer/carrier’s failure to file a timely answer as was caused by claimant’s error on her application; the ALJ therefore denied the motion to dismiss the case, ordered the application amended to show the proper injury date, accepted employer/carrier’s late answer, and referred the case to the scheduling clerk for scheduling of a hearing.
Attorney(s) - Plaintiff --E. Craig McAllister of Eddington & McArthur, Orem
Attorney(s) - Defense --Thomas C. Sturdy of Blackburn & Stoll
Facts/Contentions --After claimant filed her application for a hearing, it was mailed to employer/carrier on August 9, 2001, but no timely answer was received. The ALJ declared the employer in default on October 15, 2001 per claimant’s motion. Employer/carrier filed a motion for review, which was denied by the Commission on April 30, 2002, and the matter was remanded to the ALJ for determination of the benefits due claimant.
On April 25, 2002, employer/carrier filed a motion to dismiss, contending that claimant had erred on her application in stating the date of her injury. Claimant agreed that the date was incorrect. Employer/carrier argued that because the date was incorrect, the ALJ must dismiss the application for hearing. Claimant sought to amend the application to reflect the correct date. Employer/carrier filed its answer to the claim on November 9, 2001.

WORK INJURY
Case Type --WA; Work-related injury claim
Case Name --Marlene S. Herrera vs. Bright Horizons CDC and/or Liberty Mutual Insurance Company
Case Number --20011321
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 12/02
Amount --Per stipulation by the parties, the ALJ dismissed this claim without prejudice.
Attorney(s) - Plaintiff --David K. Smith
Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Damages --Claimant sought payment of medical expenses and benefits for recommended medical care and temporary total disability.
Facts/Contentions --Claimant stated she was injured in the course and scope of her employment on April 28, 2001. Employer/carrier disputed this claim, arguing that claimant’s employment with Bright Horizons terminated on February 28, 2001.
At the hearing, the parties agreed that the dates of the injury and the termination were both correct, and stipulated to claimant’s withdrawal of her application for benefits.

SLIP/FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --John McClay vs. Chad Williams and David Avila dba Office Outfitters; Uninsured Employers’ Fund; Workers’ Compensation Fund; and Midwest Office and/or North American Specialty Insurance Company
Case Number --2000934
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 12/02
Amount --The ALJ ordered Office Outfitters and Midwest/North American to pay claimant accrued temporary total disability benefits of $796.70 in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Office Outfitters and Midwest/North American must also pay claimant accrued permanent partial disability benefits of $2,418, in a lump sum plus interest and less attorney’s fees as specified above, for his 5% related whole person permanent impairment. The ALJ ordered Office Outfitters and Midwest/North American to pay all claimant’s related medical expenses.
Injuries --Claimant sustained injuries to his low back and right hip. After much dispute, claimant was finally diagnosed with a moderate broad-based disc bulge with right paracentral annular tear at L4/5; a mild broad-based disc bulge with small left focal proximal foramina/left paracentral focal disc protrusion at L5/S1, with no evidence of canal stenosis or neuroforaminal narrowing; lumbar sprain-strain; and sacroilitis. Dr. Knoebel gave claimant a 3% related whole person impairment rating, while Dr. Rowlands, who finally diagnosed the disc bulges, rated claimant’s related whole person impairment at 5%, with permanent lifting restrictions. Since this difference was less than 5%, the ALJ was not required to refer the matter to a medical panel, but was allowed to accept the higher impairment rating and restrictions, and did so.
Attorney(s) - Plaintiff --Philip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --For UEF: Sherrie Hayashi; for Midwest/North American: Carrie T. Taylor of Richards, Brandt, Miller & Nelson; for WCF: Eugene C. Miller Jr.; Chad Williams dba Office Outfitters was represented pro se.
Expert Witness(es) - Plaintiff --Dr. James Woesner; Dr. Richard Knoebel; Dr. Lance Rowlands
Facts/Contentions --Claimant worked for Office Outfitters as a cubicle installer. Office Outfitters was hired as a subcontractor by Midwest, which supervised the work of Office Outfitters personnel on the job site and retained the right to say whether or not a particular Office Outfitters employee could work on the site. Office Outfitters had no workers’ compensation coverage in place at the time this claim arose. The ALJ concluded that Midwest served as the statutory employer for the Office Outfitters employees on the job where Office Outfitters served as a subcontractor. However, Office Outfitters remained in business at the time of the hearing, and no evidence was produced to prove it was insolvent or unable to pay the claim.
Claimant said he was straightening panels on cubicles already installed on the second floor of the site when he slipped on a cap as he was picking up a 45-pound wall panel and fell to the ground, with the panel landing on top of him. He immediately reported the accident to his supervisor, who called owner David Avila. Claimant stated that Avila took claimant to the doctor within 30 minutes of the accident.
All employers/carriers challenged claimant’s account of the accident because the date on which he said it occurred was a Sunday, and he did not work that day. Claimant later figured that he was hurt on the following Wednesday, and the ALJ found the preponderance of the evidence indicated that this account was the correct one. The medical records showed a visit by claimant to a doctor for an industrial injury on the Wednesday.
Employers/carriers contended that this incident constituted a re-injury, noting that two and a half months earlier claimant strained his low back while lifting a 140-pound friend. However, all the experts concurred in concluding that prior to the industrial incident, claimant had no ratable injury or pre-existing impairment, and the industrial injury therefore constituted a new injury. The ALJ noted that even had this been a re-injury, the circumstances and actions which led up to claimant’s injury exceeded those which a person might encounter in everyday life, and thus met the Allen test in Utah case law, which requires an injured worker with a pre-existing injury to prove that the actions which caused the injury exceeded those a person might encounter in everyday life, such as lifting a toddler, a full garbage can or a bag of groceries.

FALL
Case Type --WA, SF; Work-related fall
Case Name --Gloria Kim Russell vs. Larry H. Miller Arena Corporation and/or Atlantic Mutual Insurance Company
Case Number --98830
Court/Judge --George
Verdict/Settlement --Order, 12/02
Amount --The ALJ accepted the medical panel’s findings and ordered employer/carrier to pay claimant accrued temporary total disability benefits of $12,672 in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant accrued permanent partial disability benefits of $3,594.24, in a lump sum plus interest and less attorney’s fees as specified above, for her 4% related whole person permanent impairment. The ALJ further ordered employer/carrier to pay claimant’s related medical expenses. Employer/carrier shall be given credit for any benefits already paid to claimant on these awards.
Injuries --Claimant suffered a ruptured right femoral artery; a fractured right elbow; and a fractured left little finger. She underwent surgical removal of an abdominal hematoma.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Stuart F. Weed of Kirton & McConkie
Expert Witness(es) --By stipulation, the parties waived a hearing and allowed this case to be referred directly to a medical panel consisting of Dr. John Hylen--chair; and Dr. Glade B. Curtis.
Facts/Contentions --Claimant stated that she was stepping over a chair while working in the arena and fell, straddling the chair and landing on her perineal area. She reported abdominal pain shortly afterward and went to a hospital emergency room, where she was admitted and referred for surgery.
Employer/carrier initially contended that claimant was not in the course and scope of her employment when she was injured, but eventually accepted liability; however, the parties then disagreed over the period of temporary total disability, the date of medical stability and the permanent impairment rating.
The medical panel found claimant stabilized medically 10 months after her industrial accident. The panel awarded claimant a 14% whole person permanent impairment rating from all causes, with 4% of that whole person impairment related to her industrial injury.

ORDER ON MOTION FOR
RECONSIDERATION
Case Type --WA; Work-related injury
Case Name --Ronald K. Ahina vs. JP Realty and Liberty Mutual
Case Number --2002155
Court/Judge --Poelman
Verdict/Settlement --Order, 12/02
Amount -- The ALJ denied the motion for reconsideration and confirmed that the default declaration entered against employer/carrier for their failure to attend the hearing was proper. The ALJ also confirmed that the award made in the order was supported by the evidence.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Mark D. Dean of Blackburn & Stoll
Facts/Contentions --After claimant’s hearing, employer/carrier was ordered to pay claimant temporary total disability benefits, travel expenses and interest. The ALJ noted that employer/carrier did not appear at the hearing in spite of having received notice of it; they were therefore declared in default.
After the ALJ entered his order, he received a letter from David M. Libby, a case manager at Liberty Mutual Insurance, raising objections to the order. The ALJ informed Libby that employer/carrier must be represented by legal counsel, and an extension of time was granted to allow employer/carrier to find a lawyer and present a motion for reconsideration of the order. Employer/carrier duly obtained legal representation and submitted the motion for reconsideration.
Employer/carrier’s motion for reconsideration was based primarily on the claim that Libby had not received the documentation he requested when he filed his answer to the initial claim for benefits. However, the ALJ noted, at claimant’s hearing (at which Libby was not present), evidence was presented showing that Libby repeatedly failed to respond to requests from claimant and his treating physician which were made over extended periods of time while claimant was undergoing medical treatment. The evidence further showed that Libby received the documentation that formed that basis of the ALJ’s order awarding temporary total disability compensation. No evidence was produced to prove otherwise. In addition, the ALJ noted that it was obvious that employer/carrier failed to conduct any discovery or prepare in any way for the hearing, and that they chose not to attend the hearing.

FALL
Case Type --WA, SF; Work-related fall
Case Name --Scott Arrant vs. New Deal Used Cars and Workers’ Compensation Fund
Case Number --2000547
Court/Judge --Eblen
Verdict/Settlement --Order, 12/02
Amount --The ALJ accepted the medical panel’s report and concluded that the proposed exploratory arthroscopy is medically necessary to treat claimant’s industrial injury. The ALJ therefore ordered employer/carrier to pay all claimant’s related medical expenses, including the costs of the arthroscopy. Employer/carrier must also pay claimant temporary total disability compensation for the time he is off work following the arthroscopy, deducting attorney’s fees from these payments and sending them directly to claimant’s attorney.
Injuries --Claimant suffered a right knee injury, the nature of which was uncertain. His MRI was normal, but given the nature of claimant’s symptoms, several physicians suspected a meniscal tear that simply did not show up on the scan.
Attorney(s) - Plaintiff --Ryan Shaw
Attorney(s) - Defense --Lori Hansen
Expert Witness(es) -- Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Alvin Wirthlin--neurologist and chair; and Dr. Glenn Momberger--orthopedic surgeon.
Facts/Contentions --Claimant was spraying starter fluid into the carburetor of a Chevy S-10 pick-up truck that was parked on a 4- 1/2-to-5-foot-tall display rack. Two co-workers were helping to move the truck off the rack. They apparently rocked the vehicle to release the trailer hitch, which was stuck in the asphalt, and the truck rolled backwards down the ramp, causing claimant to fall and land on his right leg and arm. He walked about 30 feet away and sat down, but after sitting a few minutes, he was unable to walk at all. His co-workers took him to a local emergency room for medical treatment.
Employer/carrier accepted liability and paid benefits, but disputed the necessity for recommended arthroscopic exploration and the possibility of a meniscal tear.
The medical panel concluded that there are specific symptoms, including the way the knee locks up and pops and the way claimant unlocks his knee, as well as the fact that the right thigh has a less-than-normal circumference, which provide enough evidence to support a suspicion of meniscal tear despite a normal MRI. The panel found claimant is not yet medically stable and therefore cannot be assigned a permanent impairment rating.

DISCRIMINATION
Case Type --SD, SH; Discrimination/sexual harassment claim
Case Name --(Name of case withheld)
Case Number --8010253
Court/Judge --Poelman
Verdict/Settlement --Order, 12/02
Amount --The ALJ granted employer’s motion for summary judgment and dismissed this claim with prejudice, noting that claimant failed to file her claim within 180 days of the alleged discrimination as Utah law requires. By the time claimant reported it, the alleged harassment had stopped.
Attorney(s) - Plaintiff --Claimant told the ALJ that she would seek the assistance of legal counsel, but never did so.
Attorney(s) - Defense --Gary A. Dodge of Hatch, James & Dodge
Facts/Contentions --Claimant alleged that her employer engaged in discrimination, sexual harassment and general harassment against her and subjected her to compensation discrepancies, unfavorable working conditions and termination. The Utah Anti-Discrimination Division issued its findings that there was no evidence to support these contentions, and claimant requested a hearing before an ALJ, as was her right by law. Her employer moved for summary judgment. Claimant was granted additional time in which to respond to the motion, and though she filed a “to whom it may concern” letter in response to the motion, she did not present any evidence to support her case. Employer’s reply memorandum to claimant’s letter was accompanied by documentary evidence and an affidavit.

DISCRIMINATION
Case Type --SD; Discrimination claim
Case Name --(Name of case withheld)
Case Number --8000496
Court/Judge --Poelman
Verdict/Settlement --Order, 12/02
Amount --The ALJ found employer’s evidence convincing and noted that claimant’s evidence did not prove her pregnancy was the basis for her termination. The ALJ also found claimant did not produce sufficient evidence to prove her workplace environment was affected adversely by comments made by her co-employees concerning her work or her pregnancy. The ALJ therefore dismissed this claim with prejudice.
Attorney(s) - Plaintiff --Cory R. Wall of Wall & Wall
Attorney(s) - Defense --Kara J. Porter of Christensen & Jensen
Facts/Contentions --Claimant contended that when she told her employer she was pregnant, the employer discriminated against her by allowing pejorative comments from claimant’s co-workers to create a hostile work environment and eventually terminated claimant’s employment.
The Utah Anti-Discrimination Division issued a finding that there was no reasonable evidence to support claimant’s allegations, and claimant requested a hearing before an ALJ, as is her right under Utah law.
Employer produced evidence proving that claimant’s termination had nothing to do with her pregnancy, but instead was based upon claimant’s unauthorized activity in establishing an account with a wholesale candle company and purchasing candles for her own use and the use of several co-workers through her employer’s company name. Employer’s evidence substantiated his story that he received a complaint alleging that his company had purchased candles at wholesale price in competition with other companies who were also engaged in the sale of candles ordered from the same company. Investigation revealed that claimant purchased the candles in the company’s name, but without employer’s knowledge or consent, opening the account with the candle company without the required permission from authorized personnel.

ALLERGIC REACTION
Case Type --WA, MS; Work-related miscellaneous injury (allergic reaction)
Case Name --Maria Guzman vs. Five Points Mall and Workers’ Compensation Fund
Case Number --2001847
Court/Judge --Eblen
Verdict/Settlement --Order, 1/03
Amount --The ALJ found that claimant failed to prove her allergic exposure and reaction in September of 2000 had anything to do with her subsequent reaction and need for treatment in March of 2001. The ALJ therefore dismissed this claim with prejudice for lack of causation.
Injuries --Claimant suffered an initial episode of urticaria (often called hives) in September of 2001. She returned for treatment upon experiencing weakness and right hand discomfort in March 2001. She was diagnosed at that time with an allergic reaction to some unknown substance.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Thomas C. Sturdy of Blackburn & Stoll
Facts/Contentions --Claimant’s urticaria appeared in September of 2000 after she cleaned out a refrigerator containing spoiled food and fish while in the course of her work for Five Points Mall. She used soap, water, bathroom cleaner and floor cleaner while trying to get the refrigerator clean. She noticed that her hands began to itch while performing this task, and by that night she had an itchy rash on her arms, chest, throat and face; her tongue and throat were swollen, her chest was tight, and she was having trouble breathing. She sought medical care at a local emergency room, where she was given Benadryl, Pepcid, Claritin and a topical corticosteroid ointment. She was told to use no chemical cleaners or power machinery for 30 days after this incident. She later returned to Mexico to visit family, and on her return to Utah she went to work at Motel 6. On March 1, 2001, she returned to the emergency room, claiming chemical exposure. She contended that her reaction in March 2001 was caused by a flare-up of the industrial injury she suffered in September of 2000. She did not present any evidence to prove this allegation.
Employer/carrier accepted liability for the first injury, but denied liability for the second episode.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Carey E. Ward vs. GCR Bridgestone/Firestone and Insurance Company of the State of Pennsylvania
Case Number --2000989
Court/Judge --Eblen
Verdict/Settlement --Order, 1/03
Amount --The ALJ accepted the medical panel’s report over employer’s objections and ordered employer/carrier to pay claimant’s related medical expenses, including those for future care; these expenses involve a recommended discogram and possible lumbar fusion surgery. Employer/carrier must pay claimant accrued temporary total disability compensation of $31,740 in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also continue to pay claimant temporary total disability benefits of $276 per week until he attains medical stability.
Injuries --Claimant suffered a low back injury. He had a pre-existing back condition, and lumbar surgery has been recommended but not yet performed.
Attorney(s) - Plaintiff --Wayne Freestone of Parker, Freestone & Angerhofer
Attorney(s) - Defense --Brad Betebenner and Mark Sumsion of Richards, Brandt, Miller & Nelson
Expert Witness(es) --The parties waived a hearing and stipulated to the referral of this matter directly to a medical panel consisting of Dr. Madison H. Thomas--neurologist and chair; and Dr. Glenn L. Momberger--orthopedist.
Damages --Employer/carrier paid claimant $13,884.04 in disability benefits and $5,860.68 in medical benefits to the date of the hearing.
Facts/Contentions --Claimant injured his low back when he slipped and twisted his torso while lifting a tire. He previously injured his back while working for another employer, and applied for workers’ compensation benefits; that application was denied.
Employer/carrier admitted that the injury occurred, but disputed whether the proposed lumbar spinal surgery is reasonably necessary to treat it.
The medical panel found that the care claimant received for his injury so far has been reasonable and necessary. Future care will probably need to include follow-up with a spinal surgeon, a discogram, and possibly surgery, depending upon the findings. The panel concluded that claimant was not capable of performing the light duty work employer offered to him, and he has not yet stabilized medically.

WORK-RELATED DEATH
Case Type --WA, WD, AA; Claim for work-related death benefits, automobile accident
Case Name --Danielle Allen, mother and next best friend of Savahna Lynn Howard, daughter of Jared Bevans, vs. Pac West Food and/or American States Insurance Stacey Rawson, common-law wife of Jared Bevans and Stacey Rawson, mother and next best friend of Kyle James Bevans, son of Jared Bevans, vs. Pac West Food and/or American States Insurance
Case Number --2002210
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 1/03
Amount --Pursuant to stipulation by the parties, the ALJ ordered employer/carrier to pay Savahna Lynn Howard dependent death benefits of $98.50 per week beginning September 12, 2001, and running through September 12, 2007. Thereafter, employer/carrier shall pay her $98.50 per week until such time as she is no longer classified as dependent under Utah law, but benefits from this date on are subject to an offset for Social Security death benefits as allowed by law. The ALJ also ordered employer/carrier to pay Kyle James Bevans dependent death benefits of $98.50 per week beginning September 12, 2001, and running through September 12, 2007. Thereafter, employer/carrier shall pay him $98.50 per week until such time as he is no longer classified as dependent under Utah law, but benefits from this date on are subject to an offset for Social Security death benefits as allowed by law. All dependent death benefits are to be paid into the accounts established by the Adjudication Division of the Labor Commission at Mountain America Credit Union for the benefit of the dependents, and disbursements shall only be made upon written direction by the Commission pursuant to a showing of need by the custodial parent or legal guardian and as determined by the Commission. Disbursements must be requested two weeks in advance except in case of emergencies, and requests must explain the reason for the withdrawal. Guardians shall notify the Commission immediately upon the death or marriage of any dependent. The parties stipulated to an attorney’s fee of $1,400 for attorney Shell, and the ALJ set attorney Allen’s fee at the same amount. Attorneys’ fees are to be deducted from the accrued benefits, which are due and payable in a lump sum plus interest; these fees are to be paid directly to claimants’ attorneys.
Injuries --The parties stipulated that Jared Bevans died 9/12/01 in a single-vehicle accident that arose in the course and scope of his employment with Pac West.
Attorney(s) - Plaintiff --For the Allen/Howard claimants: Phillip B. Shell of Day, Shell & Liljenquist; for the Rawson/Bevans claimants: Timothy C. Allen
Attorney(s) - Defense --Stuart F. Weed of Kirton & McConkie
Facts/Contentions --The only issue disputed by the parties was how the decedent’s death benefits should be allocated. On December 11, 2002 Stacey Rawson withdrew her claim to any share of these benefits. The parties stipulated that Jared Bevans left two children entitled to compensation. At the hearing, the parties stipulated that the dependent benefit rate should be $197 per week, and that this sum should be divided equally between Savahna Howard and Kyle Bevans so long as they both remained dependent according to Utah law.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --Robert Brunson vs. Snow Basin and ACE USA
Case Number --2001688
Court/Judge --Eblen
Verdict/Settlement --Order, 1/03
Amount --On the basis of the medical record, the ALJ agreed that claimant was required to meet the Allen test in connection with this injury (see below). However, the ALJ noted that employer provided no evidence to prove that skiing and snowboarding are typical everyday activities for an average person. The ALJ therefore found that claimant’s work activities which led up to his injury met the Allen test, and the accident was therefore compensable. The ALJ ordered employer/carrier to pay claimant accrued temporary total disability benefits of $12,658.52. Employer/carrier must also pay claimant accrued permanent partial disability benefits of $1,984.32 for his 3% permanent whole person impairment. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. The ALJ ordered employer/carrier to pay claimant’s related medical expenses.
Injuries --After the incident where claimant helped lift the guest, he underwent an MRI, which showed a small disc herniation at L4/5 with some degeneration at that level. Claimant’s doctors and the independent medical examination physician all noted that claimant had a pre-existing asymptomatic degenerative condition in his lumbar spine. Dr. Moress gave claimant a 3% whole person impairment rating, found that he reached medical stability on April 30, 2001, and concluded that all medical care claimant received was reasonable and necessary. Surgery is not a recommended option at this time.
Attorney(s) - Plaintiff --W. Scott Lythgoe, Ogden
Attorney(s) - Defense --Thomas C. Sturdy of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Daniel Alsop; Dr. Frank Brown; Dr. Bryson Smith--neurosurgeon; Jeff Child, DC; Dr. William Brandt
Expert Witness(es) - Defense --Dr. Gerald Moress
Facts/Contentions --Claimant, who worked for employer as a host, stated that he slipped and fell while assisting with the set-up of snow-making equipment on the men’s slalom course at Snow Basin in anticipation of an upcoming World Cup ski race. The course is a double-black-diamond run. Claimant was dragging three lengths of snow-making hose behind him as he went down the slope, and the hose got tangled behind him on the slope and caused him to lose his edge. Claimant fell, landing on his tailbone on solid ice. He skied slowly down the mountain, falling several times; at the lodge he reported the injury and sought medical care. He was given lighter skiing work with lower-ability groups for tours, but re-injured his back while helping a large guest who fell on powder and was unable to get up. His doctor took him off work after this incident occurred.
Employer/carrier alleged that claimant had a pre-existing low back condition and contended that the fall did not constitute a new injury. If the fall did constitute a new injury, employer further argued, the accident did not meet the Allen test. Utah case law (Allen) states that an injured employee with a pre-existing condition must prove that the work activities which led up to the injury exceeded those which a person might encounter in everyday life.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --(Name of case withheld)
Case Number --2001673
Court/Judge --Poelman
Verdict/Settlement --Order, 1/03
Amount --The ALJ found claimant failed to prove he suffered an industrial injury; the ALJ therefore dismissed this case with prejudice.
Injuries --Claimant alleged a back injury.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Expert Witness(es) - Defense --Dr. Renee Scheidell
Facts/Contentions --Claimant had been working for a waste management company for three years as a truck driver when he informed employer that he would soon be leaving the state. He was assigned to train a new driver before he left. He stated that he was picking up trash from the side of a road when he lifted a container which had cement in the bottom of it and was heavier than expected. He said he felt a pop in his back, followed by pain. He sought medical care the following day when his pain continued, and was given a prescription for pain medication. The following day he returned to the work care clinic to see a doctor, but he claimed the doctor came into the examination room and told him to “just go home.” He denied having any other conversation with the doctor about his treatment. He said he went back to his workplace and was instructed to return to the office after the weekend to be referred for further treatment; however, that weekend he moved to San Diego, California. He later saw a doctor in San Diego and another doctor in Tijuana, Mexico. He said he has not worked since being injured, but felt he could have started driving again after two months or so except for the fact that he could not pass the required physical examination.
Employer/carrier’s former dispatcher testified that a month before the alleged accident, claimant asked about the health of the dispatcher’s husband, who was receiving workers’ compensation benefits for a back injury at that time. The dispatcher said claimant represented to her that he had a prior back injury from the time when he was working for another company; she added that claimant seemed very interested in the fact that her husband was receiving compensation even though he was not working. The dispatcher said claimant told her he was going to tell his supervisor that he had hurt his back. Claimant’s supervisor testified that claimant was released to light duty work after the alleged injury, but refused to accept such work when his employer offered it to him. Employer’s environmental health and safety officer reported that he spoke with claimant’s doctor at the work clinic, and she stated that she attempted to examine claimant, but claimant became abusive and combative and refused the offered treatment, whereupon she asked him to leave.
The ALJ noted that claimant’s credibility was rendered suspect not only by the testimony from employer’s staff members, but by discrepancies in his own testimony and by the evidence in the medical record. The ALJ also noted that claimant refused light duty work when it was offered and left the state following his alleged injury without obtaining permission from his employer or from the Labor Commission, as Utah law requires in cases where a claimant wishes to relocate when a decision has not yet been reached by the ALJ on a claim. Claimant contended that he needed additional treatment, but failed to substantiate this claim.

WORK INJURY
Case Type --WA, SI; Work-related repetitive stress injury
Case Name --Stormee Clark vs. Salt Lake Clinic
Case Number --2001967
Court/Judge --Eblen
Verdict/Settlement --Preliminary order, 2/03
Amount --The ALJ referred this case to a medical panel because of conflicting medical testimony.
Injuries --Claimant suffered left carpal tunnel syndrome. Dr. Hunter did not assign claimant a permanent impairment rating.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Henry K. Chai II of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Hunter--treating physician
Facts/Contentions --Claimant worked in employer’s medical records department for seven and a half years. She pulled and filed charts; checked charts out and in; and typed some names and bar code numbers for tracking records. She claimed the exertions of her job caused her carpal tunnel syndrome. She had right carpal tunnel surgery in 2000, and claimed that since then she has compensated for the weakness in her right hand by doing more work with her left hand. She did not claim her right carpal tunnel surgery as a work injury.
Self-insured employer pointed out that Dr. Hunter’s records indicated that he felt there was no causal connection between claimant’s work injuries and the symptoms for which he was treating claimant. However, the physician’s first report of injury showed the injury which caused the left carpal tunnel syndrome to be industrial, and a second report from WorkMed, made by another physician, showed the injury was “possibly” industrial.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Marie Donner vs. Granite Construction and/or Argonaut Insurance Company
Case Number --2001257
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 2/03
Amount --In accordance with the agreement reached by the parties at the hearing, employer/carrier must pay claimant two weeks’ worth of accrued temporary total disability compensation, or $750, in a lump sum less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay $695 in related medical expenses. Because claimant did not provide a permanent impairment rating, the ALJ dismissed her claim for permanent partial disability benefits.
Injuries --Claimant suffered injuries to her head, neck, and right upper extremity.
Attorney(s) - Plaintiff --J. Kent Holland of Anderson & Holland
Attorney(s) - Defense --Mark D. Dean of Blackburn & Stoll
Facts/Contentions --Claimant stated that her injuries were caused by a work-related accident suffered on 9/15/2000.
Employer/carrier contended that claimant had a pre-existing condition; employer/carrier also argued that claimant suffered a subsequent injury to the same parts of her body while working for another employer and intended to file another claim for this second injury and consolidate the two claims. Counsel for claimant denied any intent to file a second claim. However, claimant’s counsel also admitted that claimant lacked an impairment rating for any of her injuries.
At the hearing, the parties agreed that claimant suffered the industrial injury of 9/15/2000, and employer/carrier agreed to pay two weeks’ worth of disability benefits and all related medical expenses.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Joseph Witherspoon vs. Lifetime Products and/or Zurich Insurance
Case Number --2002715
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 2/03
Amount --The ALJ dismissed this claim with prejudice for claimant’s failure to prove medical causation.
Attorney(s) - Plaintiff --Claimant failed to appear at the hearing on his claim.
Attorney(s) - Defense --Thomas C. Sturdy of Blackburn & Stoll
Expert Witness(es) --Dr. Ralph Foley--treating physician
Facts/Contentions --Claimant contended that his injuries were caused by an industrial accident he allegedly suffered on 4/6/2002.
Employer/carrier denied that the accident, if it occurred, was the medical cause of claimant’s injuries.
At the hearing on the claim, claimant failed to appear, but respondents appeared and argued the medical evidence. They claimed the medical record showed that claimant’s own treating physician, Dr. Foley, felt there was no medically causal relationship between claimant’s industrial accident and the problems for which Dr. Foley was treating claimant.

WORK INJURY
Case Type --WA, SI; Repetitive stress injury
Case Name --Darla Basso vs. Koret of California and/or Liberty Mutual Insurance; and Rivers West and/or Workers’ Compensation Fund
Case Number --200117, 20011243, 2001952
Court/Judge --Hann
Verdict/Settlement --Order, 2/03
Amount --The ALJ accepted the medical panel’s findings and ordered Koret/Liberty Mutual to pay claimant accrued temporary total disability compensation of $1,088.22 in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Koret/Liberty Mutual must also pay claimant’s related medical expenses.
Injuries --Claimant suffered pain in her right shoulder, right elbow and neck. These symptoms were later found to stem from a cervical spinal injury, and claimant may require surgery in the future.
Attorney(s) - Plaintiff --Richard R. Burke of King, Burke & Schaap
Attorney(s) - Defense --For respondent Koret of California/Liberty Mutual: Dori K. Petersen of Blackburn & Stoll; for respondent Rivers West/WCF: Hans M. Scheffler
Expert Witness(es) --Because of conflicting medical testimony, the ALJ referred this case to a medical panel chaired by Dr. Edward Holmes.
Facts/Contentions --Claimant stated that she suffered her first repetitive stress injury while working at Koret. She claimed she suffered further injury while pulling materials off the conveyor belt and sewing pockets on pants after the plant was taken over by Rivers West. Employees at both operations were paid by the piece, and sometimes the belt operator, who slowed the belt so employees could grab items off of it, would speed up the belt too soon, so the employees’ arms were often jerked hard as they were hanging onto an item on the belt.
Rivers West contended that claimant never gave them notice of the injury or told the that she had filed a claim; they stated that their first knowledge of the claim was the notice of hearing.
Koret denied liability on grounds of a lack of medical causation.
The medical panel found that claimant’s activities at Koret’s workplace were the cause of her injuries.

DISCRIMINATION
Case Type --WA, SH; Work-related discrimination claim
Case Name --(Name of case withheld)
Case Number --8020362
Court/Judge --Eblen
Verdict/Settlement --Order, 2/03
Amount --The ALJ dismissed this claim with prejudice on grounds that claimant failed to file her request for an evidentiary hearing in a timely manner.
Attorney(s) - Plaintiff --Robert D. Tingey
Attorney(s) - Defense --Brett G. Pearce of Pearce & Spratley
Facts/Contentions --Claimant initially filed a charge of employment discrimination against her employer with the Anti-Discrimination Division of the Labor Commission, and the Division issued an order finding there was no reasonable cause to believe claimant was subjected to illegal employment discrimination. Claimant requested an evidentiary hearing 33 days after the order was issued.
Claimant’s employer objected to the request for hearing on grounds that it was not timely filed. Utah law requires that a request for an evidentiary hearing must be filed within 30 days of the issuing of an order by the Division. Claimant replied that her attorney moved his office and suffered a knee injury in January of 2003, so that he was not in his office at the time the request was due. Claimant said the request was filed on the day her attorney returned to his office.

FALL
Case Type --WA, SF; Work-related fall
Case Name --Donna M. Simpson vs. Utah Power & Light/Pacificorp and/or Wasatch Crest
Case Number --2000960
Court/Judge --Hann
Verdict/Settlement --Order, 2/03
Amount --The ALJ accepted the medical panel’s report over objections from both sides and ordered employer/carrier to pay claimant accrued temporary total disability benefits of $12,540.08, as well as $12,573.60 in accrued permanent partial impairment benefits for her 13% related whole-person impairment. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney. Employer/carrier must also pay all of claimant’s related medical expenses.
Injuries --Claimant suffered a lateral herniated disc on the left side of L4/5. She underwent surgery, which helped but did not relieve the pain entirely. Another disc herniation was found after her pain increased again following several more work-related incidents, and claimant underwent back fusion surgery.
Attorney(s) - Plaintiff --W. Scott Lythgoe, Ogden
Attorney(s) - Defense --Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Expert Witness(es) --Because of conflicting medical testimony, the ALJ referred this case to a medical panel consisting of Dr. Alvin J. Wirthlin--chair; and Dr. Glenn Momberger--orthopedist.
Facts/Contentions --Claimant worked as an electrical meter reader on a rural route, walking and driving on all sorts of surfaces, climbing up and down hills, pushing and pulling to get gates open or closed and bending and twisting to read meters. A noted hazard in the job description was slipping on uneven terrain or slick surfaces, and claimant had several slips and falls before this claim arose. She was walking her route early in the morning after an overnight snowfall when she came to a path in the back yard of an apartment complex where a glass storm door had been left lying on the ground and had been covered over with snow during the night. She suffered a twisting fall when she stepped on the door and landed flat on her back. She was in increasing pain while walking the rest of her route, and another slip and controlled fall on black ice before she finished worsened her pain. She said she felt no one would believe her of she said she fell on a door, so she got a disposable camera after work, went back and took pictures. After that, she sought medical care.
Employer/carrier contended that slips and occasional falls were a hazard of the job which claimant accepted when she went to work for this employer.
The medical panel found it was not the injury cited in this claim which caused claimant’s problems, but a later injury in which she climbed out of her truck, slipped on some rocks, and landed hard on her buttocks. The panel noted that it was not until after this incident that claimant began experiencing symptoms indicating radiculopathy. The panel found claimant stabilized medically six months after the second surgery, and they gave her a related 13% whole-person impairment rating, all attributable to the later injury.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --(name of case withheld)
Case Number --2001263
Court/Judge --George
Verdict/Settlement --Order, 1/03
Amount --The ALJ found claimant’s injury was compensable and ordered employer/carrier to pay all claimant’s related medical expenses. Employer/carrier must also pay claimant accrued temporary total disability compensation for the time he was off work following his surgery. These benefits of $3,854.29 are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney.
Injuries --Claimant suffered from hemorrhoids and underwent a hemorrhoidectomy.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Floyd Holm
Expert Witness(es) - Plaintiff --Dr. Chin
Facts/Contentions --Claimant drove truck for up to 16 hours per day in the course and scope of his work for employer. He contended that his hemorrhoids were caused by the prolonged sitting and jouncing involved in this work activity. His doctor concluded that there was a medically demonstrable causal relationship between claimant’s prolonged sitting and his hemorrhoids.
Employer/carrier denied liability and disputed causation, but did not produce any medical evidence to support their arguments and contentions.

OCCUPATIONAL DISEASE CLAIM
Case Type --OD; Occupational disease claim
Case Name --(Name of case withheld)
Case Number --200098
Court/Judge --George
Verdict/Settlement --Order, 2/03
Amount --The ALJ noted that claimant should have known that his work was causing him psychological problems shortly after the motor vehicle accident, if it was then that his problems began. Therefore, claimant failed to file his claim within the 180 days allowed him by law after he became aware that his industrial exposure had resulted in symptoms. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant alleged that he suffered psychological trauma because of conditions at work.
Attorney(s) - Plaintiff --Hans Scheffler (withdrew)
Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Kirkham--psychotherapist
Expert Witness(es) - Defense --Dr. Knippa--independent psychological evaluation
Facts/Contentions --Claimant stated that the traumatic stress he suffered while at work for his employer made it impossible for him to work from 10/12/98 through the present. Claimant was human resource manager at his employer’s company, and one of his drivers was involved in a head-on collision that resulted in the death of the driver of the other vehicle. Dr. Kirkham’s records did not show any mention by claimant of this accident until almost a year after claimant was laid off, which was almost two years after the accident. Claimant also saw his workforce diminish from 115 to 18 when it was determined that the plant would close, but said he elected to stay on as long as the job lasted so his family could remain in the area.
Employer/carrier denied liability on grounds of lack of legal causation, lack of medical causation, and untimely filing of the claim. Employer/carrier contended that the claim arose from good-faith employer personnel actions, and claimant was given an additional 45 days to submit additional evidence to prove that his claim was based on actions that exceeded good-faith personnel actions. However, claimant did not submit any further evidence. He was the only witness at his hearing, and he did not submit any exhibits. Employer produced evidence showing that claimant signed a severance agreement which contained a clause waiving workers’ compensation benefits.

WORK INJURIES
Case Type --WA, SI, OD; Work-related injury, repetitive stress injury, occupational disease claim
Case Name --Lucila Osses-Shamy vs. ACS Business Process Solutions and/or Workers’ Compensation Fund
Case Number --200245
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 2/03
Amount --The ALJ ordered employer/carrier to pay claimant accrued permanent partial impairment benefits of $1,042.08 for her 2% related whole-person impairment in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier do not owe claimant any further temporary total disability benefits. The ALJ reserved the issues concerning surgery and further physician therapy as unripe for decision. The ALJ found the treatment claimant received for her “dry eye” syndrome was not medically necessitated by her industrial injuries.
Injuries --Claimant suffered an injury to her right arm and “dry eye” syndrome in the first accident; she also suffered repetitive stress trauma resulting in an occupational disease (right lateral epicondylitis). Her whole-person industrial impairment was rated at 2%.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --Hans M. Scheffler
Expert Witness(es) --Dr. Edward Holmes issued a report on his evaluation of this claim.
Damages --Employer/carrier paid claimant $739.57 in temporary total disability compensation, and she did not seek any further benefits of this nature in this claim.
Facts/Contentions --Claimant was first injured on her way to lunch, when the outside door of employer’s building swung shut on her arm. She claimed she suffered the repetitive stress injury while working in the company mail room, removing staples from mail with a clamp-style staple-remover. She claimed she developed the “dry eye” as the result of an allergic reaction to medication she was given during her treatment for the right elbow injury.
Employer/carrier accepted liability for the right lateral epicondylitis and the 2% related whole-person impairment. However, they claimed they had already paid claimant all the temporary total disability compensation to which she was entitled. Employer/carrier also accepted liability for treatment of the injuries to claimant’s right arm pursuant to Dr. Holmes’s report, but they felt treatment should be limited to that recommended by Dr. Holmes, and they completely denied liability for any of the “dry eye” claims.
Dr. Holmes stated in his report that he could not find any causal relationship between the right elbow treatment and claimant’s “dry eye” syndrome. He felt surgery could not be ruled out as possible further treatment for the right arm/elbow, but claimant is not a good candidate for successful surgery, and Dr. Holmes felt the risks of complications might outweigh the potential benefits.

WORK INJURY
Case Type --WA, SF; Work-related injury, fall
Case Name --Sherrill Winder vs. Wal-Mart Distribution Center and National Union Fire Insurance
Case Number --2001750
Court/Judge --Eblen
Verdict/Settlement --Order, 2/03
Amount --The ALJ found it improbable that claimant would have attempted to lift the ice chest three days after the incident at work if she had suffered any significant injury three days earlier. The ALJ also found the medical record persuasive. The ALJ therefore ruled that claimant did not sustain her injuries in the course and scope of her employment, and dismissed the case with prejudice.
Injuries --Claimant suffered a herniated disc at L5/S1 which significantly tented the nerve root. She underwent a discectomy.
Attorney(s) - Plaintiff --Aaron J. Prisbrey, St. George
Attorney(s) - Defense --Robert L. Stevens and Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Expert Witness(es) - Defense --Spencer Gunn, DC; Dr. Scott Parry, MD; William Muir, MD
Facts/Contentions --Claimant was working in the Wal-Mart distribution center near St. George, packing shoes in the warehouse. She said that when she lifted a large box of shoes and turned to place them on a mat, she felt a pop in her low back. She said her leg went numb and she fell face-forward, bloodying her nose on the box. She stated that after she fell, she left a co-worker to watch her station and went to the restroom to clean up. She said she had a limp after the accident.
Employer/carrier contended that the incident with the box was not the cause of claimant’s back problems; rather, they claimed, it was her lifting of an ice chest three days later. A co-worker testified that claimant told her (the co-worker) that she (claimant) had hurt her back lifting the box, but the co-worker did not notice claimant bleeding or limping after the incident. The co-worker was also aware of another accident claimant had three days later at home while lifting an ice chest. Claimant did not seek medical care until three days after the incident, continuing to work her regular schedule. Her manager testified that claimant called him at home the following Monday and told him she would not be into work because she had injured her back lifting an ice chest. He said he remembered the call distinctly because it was unusual for him to get a call from an employee while he was at home.
Claimant said she did not report the accident when it occurred because she did not think she had a serious injury at the time. Also, she added, Wal-Mart was offering a safety incentive to the warehouse employees. If the warehouse employees could go 365 days with no injuries requiring medical attention, Wal-Mart was going to hold a drawing in which one of them might win a truck. Claimant said she did not want to be the one to cause her co-workers to lose their chance at winning the truck.
The medical record indicated that claimant told her chiropractor and her treating physicians that she hurt her back lifting an ice chest.

FALL
Case Type --WA, SF; Work-related trip/fall
Case Name --(Name of case withheld)
Case Number --20011011
Court/Judge --Eblen
Verdict/Settlement --Order, 2/03
Amount --The ALJ found the evidence was not sufficient to prove claimant injured his foot in the course and scope of his employment, especially in light of the medical record. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered a torn posterior tendon which was surgically repaired.
Attorney(s) - Plaintiff --Claimant did not appear at the hearing on his claim.
Attorney(s) - Defense --Larry R. White of Burbidge & White
Expert Witness(es) - Plaintiff --Dr. David Murray
Expert Witness(es) - Defense --Dr. Stephen Marble
Damages --Claimant sought payment of medical expenses to treat his injury.
Facts/Contentions --Claimant stated in his application that he fell after catching his foot in a chair while he was walking in the office area of the school where he worked. After he fell, he wrote, he experienced foot pain.
Employer/carrier contended that claimant’s injury did not stem from his fall at work. The medical record indicated that claimant told his own doctor, Dr. Murray, that he experienced pain in his foot after running. Dr. Murray noted that claimant is an avid runner who typically runs 60 miles per week and often competes in marathons. Dr. Murray advised claimant to stop running, wear good support shoes and obtain an MRI. The MRI revealed the torn tendon. Dr. Murray’s records indicated that the next time claimant saw Dr. Murray, he told the doctor he first experienced the pain in his foot while directing a school walking trip. On the visit after that, he told the story of tripping and falling in the hall at the school to explain the onset of pain.
Dr. Marble, who reviewed claimant’s records, opined that claimant’s injury was not work-related.

WORK INJURIES
Case Type --WA, SF, SI, OD; Work-related trip/fall, work-related occupational disease (repetitive stress injury)
Case Name --Cheryl York vs. Rossignol Ski Company and/or Wausau Insurance Companies/Liberty Mutual Insurance Company
Case Number --2001695
Court/Judge --Poelman
Verdict/Settlement --Order, 2/03
Amount --The ALJ accepted the medical panel’s report and ordered employer/carrier to pay claimant accrued permanent partial disability benefits of $12,168 in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier was also ordered to pay all claimant’s related medical expenses.
Injuries --Claimant suffered an injury to her right arm when she fell, and later amended her claim to include the right-side carpal tunnel syndrome which she claimed was caused by her repetitive actions at work. The medical panel gave claimant a 12% related whole-person impairment rating.
Attorney(s) - Plaintiff --Aaron J. Prisbrey, St. George
Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Expert Witness(es) --Because of conflicting medical testimony, the parties agreed to waive a hearing and refer this case directly to a medical panel chaired by Dr. Scott M. Smith.
Facts/Contentions --Claimant stated that she injured her right arm when she tripped and fell while she was at work. Employer/carrier accepted liability and paid benefits except for permanent partial disability compensation; claimant’s treating physician and employer/carrier’s independent medical examination physician disagreed over her degree of permanent partial impairment.

REPETITIVE MOTION
Case Type --WA, SI; Work-related repetitive motion stress injury
Case Name --Tonya Simmons Hill vs. Litton Guidance and Control and/or RSKco
Case Number --2002100
Court/Judge --Poelman
Verdict/Settlement --Order, 3/03
Amount --The ALJ found no causal relationship between claimant’s work activities at Litton and her thoracic outlet syndrome. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered injuries to her right and left elbows and hands which were caused by bilateral carpal tunnel syndrome; claimant underwent two surgeries to repair these injuries. She later suffered thoracic outlet syndrome.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Expert Witness(es) - Plaintiff --Dr. J. Douglas Burrows
Expert Witness(es) - Defense --Dr. Dennis Stone
Damages --Employer/carrier paid workers’ compensation benefits and medical expenses for claimant’s carpal tunnel syndrome.
Facts/Contentions --Claimant contended that her thoracic outlet syndrome was caused by the stress of repetitive work activities. She stated at her hearing that her present claim did not relate to her former carpal tunnel syndrome, for which her employer had previously accepted liability and paid benefits. Dr. Burrows reported that the carpal tunnel syndrome was resolved by treatment and did not leave claimant with any permanent impairment.
Employer/carrier noted that at the time claimant was treated for the carpal tunnel syndrome, an electromyogram revealed no traces of thoracic outlet syndrome. Her work records did not indicate that she complained of continuing upper extremity problems during the two years she worked at Litton after her carpal tunnel surgeries. She left Litton at that time to take a better job. Claimant did not present any medical evidence to prove that her thoracic outlet syndrome was caused by her work activities at Litton.

SLIP
Case Type --WA, SF; Work-related slip
Case Name --Joe Martinez vs. Western States Electric, Incorporated and Workers’ Compensation Fund
Case Number --99719
Court/Judge --Eblen
Verdict/Settlement --Order, 3/03
Amount --The ALJ accepted the medical panel’s report and ordered employer/carrier to pay claimant’s medical expenses for the surgery to repair the torn rotator cuff, as well as temporary total disability compensation for the time claimant is off work after the surgery until he is declared to be medically stable. Attorney’s fees are to be deducted from these temporary total disability benefits and paid directly to claimant’s attorney. If claimant wishes to have his pre-existing degenerative shoulder conditions treated during the surgery to repair the rotator cuff tear, costs shall be apportioned for the additional surgical time and supplies needed for this treatment. Temporary total disability compensation for claimant’s recovery time may not be apportioned. The issue of permanent partial impairment was reserved, as claimant will need to obtain an evaluation after he attains medical stability following the surgery in order to determine whether he has any permanent impairment from the rotator cuff tear. The permanent impairment rating, if any, may be apportioned between claimant’s industrial injury and his pre-existing non-industrial conditions.
Injuries --Claimant suffered a full-thickness tear of the supraspinous tendon portion of the rotator cuff. He also has pre-existing bursitis, impingement syndrome, and acromioclavicular arthritis.
Attorney(s) - Plaintiff --Joseph R. Goodman of Nelson, Snuffer, Dahle & Poulsen
Attorney(s) - Defense --Floyd W. Holm
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel chaired by Dr. Scott M. Smith.
Facts/Contentions --Claimant worked as an electrician for employer. While he was working on the Scott M. Matheson Courthouse construction project, he said, he was walking down the stairs of the building to the first-floor restroom when he slipped and caught himself on the stair-railing with his right arm. He said he did not fall, but he injured his right shoulder. The stairs had not yet been covered at the time of the accident, and they were lightly covered with snow, disguising ice which had built up on the stairs.
Employer/carrier contended that the slip caused an aggravation of claimant’s pre-existing degenerative shoulder disease but did not constitute a new injury.
The medical panel opined that the trauma of claimant’s saving himself from a fall by means of the stair-rail could have torn the rotator cuff. The medical panel found that the rotator cuff was not torn prior to the slip, and surgery is medically necessary to treat it. The panel found that the rotator cuff repair surgery is not medically necessary to treat claimant’s pre-existing condition, but the industrially related surgery could be combined with surgery to repair the pre-existing damage; such non-industrial repair surgery would include decompression and distal clavicular resection.

OCCUPATIONAL DISEASE
Case Type --OD; Occupational disease
Case Name --Leslie R. Martin vs. Gates Rubber Company and/or National Union Fire Insurance and Planet Insurance Company; and Vendworx and/or Workers’ Compensation Fund and Agricultural Insurance
Case Number --2000320, 99226
Court/Judge --George
Verdict/Settlement --Order, 3/03
Amount --The ALJ accepted the medical panel’s report and found that claimant developed an occupational disease as a result of her work activities at Gates. The ALJ therefore dismissed Vendworx from the action and ordered Gates/National/Planet to pay claimant accrued temporary total disability benefits of $1,656.48 and accrued permanent partial disability benefits of $2,985.36 for her 4% whole-person impairment. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney. Gates/National/Planet must also pay all claimant’s related medical expenses.
Injuries --Claimant suffered bilateral recurrent carpal tunnel syndrome.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --For Gates/National/Planet: Theodore E. Kanell of Plant, Wallace, Christensen & Kanell; for Vendworx/WCF/Agricultural: Elliot K. Morris
Expert Witness(es) --Through stipulation, the parties waived a hearing and referred the matter directly to a medical panel consisting of Dr. Glenn L. Momberger and Dr. Madison H. Thomas.
Facts/Contentions --Claimant first worked for Gates, doing accounting and data entry work. During the last two years she worked for Gates, she did data entry full-time, 40 hours per week. She was diagnosed with carpal tunnel syndrome and underwent two surgeries while working for Gates. When she experienced recurring pain, she underwent a second left-hand surgery wherein scar tissue that had grown up around the nerve was removed. She then went to work for Vendworx, handwriting purchase orders and doing some keyboarding as well as other diverse activities. Despite claimant’s change of employment, she experienced continuing symptoms.
The medical panel found that although claimant worked at Vendworx for over twelve months, no part of her symptoms resulted from her activities there. This finding released Vendworx from total liability, since under Utah’s “Last Injurious Exposure Rule” an employee’s last employer is totally liable for worker’s compensation benefits if an employee was injuriously exposed to a hazard of occupational disease in the course of working for that employer for twelve consecutive months. The medical panel awarded claimant a 4% related whole-person impairment rating.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --(Name of case withheld)
Case Number --2001372
Court/Judge --Eblen
Verdict/Settlement --Order, 3/03
Amount --The ALJ accepted the medical panel’s report and ordered self-insured employer to pay claimant accrued temporary total disability compensation of $2,200.04, as well as accrued permanent partial disability compensation of $2,591.82 for her 5% related whole-person permanent impairment. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney. Self-insured employer must also pay claimant’s related medical expenses for treatment deemed necessary by the medical panel.
Injuries --Claimant was initially diagnosed as having multiple contusions and sprains. When her pain continued, her doctors ruled out rotator cuff tear and rip fractures. Treating and independent medical examination physicians thereafter disagreed as to the nature of claimant’s injuries, but claimant still cannot perform work which requires the use of her upper right arm.
Attorney(s) - Plaintiff --Wayne A. Freestone of Parker, Freestone & Angerhofer
Attorney(s) - Defense --Thomas C. Sturdy of Blackburn & Stoll
Expert Witness(es) --By stipulation, the parties agreed to waive a hearing and submit this matter directly to a medical panel chaired by Dr. Alvin Wirthlin.
Facts/Contentions --Claimant stated she was injured when she slipped and fell on ice in the parking lot of the school where she worked as a library media assistant. She had suffered a previous non-industrial fall two years earlier and been diagnosed with pre-existing severe fibromyalgia, bilateral subacromial bursitis, bilateral trochanteric bursitis, bilateral nascrine bursitis, and R/O regional pain syndrome, with no evidence of inflammatory rheumatologic syndrome. A later temporal artery biopsy revealed no arteritis and no mononuclear inflammatory cells in the muscular wall.
Self-insured employer disputed the amount of injury claimant suffered in the industrial fall, given the nature and extent of her pre-existing conditions and injuries.
The medical panel concluded that claimant’s medical history and findings are consistent with a diagnosis of adhesive capsulitis of the shoulder caused by the industrial fall. The panel found claimant stabilized medically five and a half months after her fall, but she is permanently restricted to light-duty use of the right arm, with no work above shoulder level. She has unrestricted use of her left arm. The panel gave claimant a 5% related whole-person impairment rating. The panel found the medical care claimant received was necessary to treat her industrial injury; however, the panel did not feel that future surgery, manipulation of the shoulder or prescription medications were indicated. The panel recommended that claimant continue to pursue a self-directed course of home treatment, focusing on exercises to improve range of motion and strengthen the shoulder.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --(Name of case withheld)
Case Number --2001396
Court/Judge --Eblen
Verdict/Settlement --Order, 3/03
Amount --The ALJ accepted the medical panel’s report and dismissed the claims for further medical expenses and disability benefits with prejudice.
Injuries --Claimant suffered a back injury. She is currently in a vocational rehabilitation program with Utah State.
Attorney(s) - Plaintiff --K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense --Henry K. Chai II of Blackburn & Stoll
Expert Witness(es) --By stipulation, the parties agreed to waive a hearing and submit this matter directly to a medical panel consisting of Dr. Joseph Q. Jarvis--chair, occupational medicine specialist; and Dr. Dennis Gordon--orthopedic surgeon. The case was referred to the medical panel for determination of date of medical stability, medically necessary treatment and permanent restrictions, if any.
Damages --Self-insured employer paid claimant $2,056.55 in temporary total disability benefits and $4,863.67 in medical expenses, and they are currently paying her for a 3% related permanent partial whole-person impairment; attorney’s fees are being withheld from these benefits. Self-insured employer has not paid any medical expenses since 3/14/01.
Facts/Contentions --The parties agreed that claimant injured her back when she yanked on a rack in the sewing department. She had a previous industrial back injury while working for the same employer a year earlier, when she lifted a 40-pound box from an overhead shelf to the floor. She was on light duty work release when she was injured the second time. The parties disagreed on the date claimant reached medical stability, medically necessary treatment and permanent restrictions, if any.
The medical panel concluded that claimant stabilized from her injuries a month and a half after her second industrial accident and should be permanently restricted to no lifting over 20 pounds and no repetitive lifting over 10 pounds. She is restricted to an 8-hour day and a 40-hour week, with a recommendation for sedentary employment. The panel noted that claimant is in very poor condition physically and would probably benefit from a properly designed and consistently maintained exercise regimen in a non-industrial sense, since such a program would help her to feel and function better in the workplace. The panel felt the medical care provided by Dr. Wilding and the Sports Medicine Clinic was not medically necessary, and neither surgery nor epidural steroid injections are indicated; indeed, no further medical care is required to treat claimant’s industrial injury.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Arturo Avalos vs. Smith’s Food and Drug Centers, Incorporated (self-insured)
Case Number --2002774
Court/Judge --Poelman
Verdict/Settlement --Order, 3/03
Amount --The ALJ found that claimant failed to notify his employer of his injury within 180 days of the accident, as Utah law requires of injured workers who wish to qualify for workers’ compensation benefits. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered two cysts, which appeared consecutively, on his left hand; the cysts were surgically excised in separate operations, and claimant suffered no permanent partial impairment.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Henry K. Chai II of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Vaughn Johnson; Dr. Curtis Johnson; Dr. James Clayton
Damages --Costs of both surgeries were paid by claimant’s personal insurance carrier.
Facts/Contentions --Claimant stated that he injured his hand while washing metal serving pans for his employer, when he pushed a pan forward and it hit another object and impacted the palm of his hand. Claimant said he did not report the incident, though he noted pain in his left palm; instead he went on working. During the weeks following this incident, claimant said, he developed a lump in the palm of his left hand and obtained permission from a supervisor, “Tony,” to take time off work to see a doctor. Claimant stated that he mentioned the accident to Tony at that time, but did not fill out an accident report. Claimant said that after the surgery to remove the first cyst, his hand did not appear to be healing well, and claimant noticed another lump in the palm of his hand. He said he discussed this problem with another supervisor, “Carson,” and went back to see his doctor. A second cyst was discovered and surgically removed. Claimant did not submit a claim for an industrial injury to his employer until seven months after the pan-washing incident occurred.
Self-insured employer contended that claimant was barred from receiving workers’ compensation benefits for his alleged work injuries because he did not notify employer of the injuries in a timely manner. Employer also pointed out that Dr. Curtis Johnson’s records indicated that claimant could not recall any specific trauma to his hand when the first cyst was removed. The possibility of a work injury claim did not appear in the medical record until claimant saw Dr. Clayton, who performed the second surgery. Dr. Curtis Johnson opined that the second cyst was completely unrelated to the first. “Carson,” claimant’s supervisor, noted that he did not receive any notice that claimant was alleging a work injury when “Carson” and claimant discussed his hand.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Tracy Callis vs. Serenity Ranch, Incorporated; Abbie Bakaric dba Serenity Ranch, Incorporated; Scott Turner dba Serenity Ranch, Incorporated; Glen Clayburn dba Serenity Ranch, Incorporated; Dennis Fox dba Serenity Ranch, Incorporated; and/or Uninsured Employers’ Fund
Case Number --20011320, 2002788
Court/Judge --Hann
Verdict/Settlement --Order, 3/03
Amount --The ALJ ordered the UEF to pay claimant accrued temporary total and temporary partial disability benefits of $4,373.63 in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. The UEF shall also pay all claimant’s related medical expenses. The issue of permanent partial disability was reserved. The ALJ ordered Abbie Bakaric and Serenity Ranch, Incorporated to reimburse the UEF for these payments and also to pay a 15% penalty for their failure to maintain workers’ compensation insurance on their employees as required by Utah law.
Attorney(s) - Plaintiff --Richard R. Burke of King, Burke & Schaap
Attorney(s) - Defense --For Dennis Fox: Eric P. Lee of Dart, Adamson & Donovan; for UEF: Sheryl Hayashi
Expert Witness(es) - Defense --Dr. Gerald Moress--independent medical examination
Facts/Contentions --Claimant was hired by Abbie Bakaric as an executive chef, and the only person claimant ever worked for was Bakaric. Bakaric described herself to claimant as the owner of the company. Claimant was injured 11/4/01, and Dr. Moress determined that she stabilized medically on 2/28/02 with a 3% related whole-person impairment.
It was determined that employer was uninsured for purposes of workers’ compensation, and the UEF requested that the claim be amended to name the officers and directors of the ranch individually because the company’s corporate status had expired, although the company was still doing business. At the hearing, the UEF stipulated that the corporate officers, Turner, Clayburn and Fox, should be dismissed from the action because they had no involvement in the day-to-day running of the company. Abbie Bakaric’s default was entered after she failed to answer or appear at the hearing. The remaining parties stipulated to the facts of claimant’s employment, injury, date of medical stability and degree of permanent impairment. The ALJ determined that Bakaric and Serenity Ranch are insolvent for purposes of this workers’ compensation claim.

DEATH BENEFITS CLAIM
Case Type --MS; Miscellaneous (claim for death benefits, airplane accident)
Case Name --Myrna L. Estep vs. Mid-State Consultants and/or Industrial Indemnity/Fremont Comp
Case Number --2002472
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 3/03
Amount --The ALJ found that decedent’s widow continues to be dependent on his workers’ compensation death benefits; the ALJ therefore ordered employer/carrier to continue to pay decedent’s widow $214 per week as specified in the earlier order in this case.
Injuries --Decedent, Douglas Estep, was killed in an airplane crash in the course and scope of his employment.
Attorney(s) - Plaintiff --Decedent’s widow was represented pro se.
Attorney(s) - Defense --Mark D. Dean of Blackburn & Stoll
Facts/Contentions --After decedent was killed in the course and scope of his employment, an ALJ issued an order awarding the decedent’s wife death benefits of $354 per week for 312 weeks. After those benefits had all been paid, decedent’s widow filed a declaration of continuing dependency wherein she stated that she continued to be dependent on decedent’s workers’ compensation death benefits. Another ALJ found her dependence continued and issued a surviving spouse benefit order.
Employer/carrier(s) filed a motion for review, contending that decedent’s wife was no longer wholly dependent on his workers’ compensation death benefits, and the ALJ held an evidentiary hearing on the issue.
At the hearing, decedent’s widow provided undisputed testimony that she receives Social Security and retirement benefits of $1,300 per month. When her annual expenses were itemized, she had a $2,025.77 annual income deficit.
Legal Issues --The ALJ noted that the Utah Supreme Court has stated in a number of cases that dependency within the meaning of the workers’ compensation statute does not mean “absolute dependency for the necessities of life,” but instead means “a need for and reliance on the decedent worker’s income to support and maintain the dependent in accordance with his or her accustomed station in life.” The Supreme Court assumes that a decedent worker’s relict is dependent on death benefits for the first six years following the worker’s death. After that time, the relict must provide further documentation concerning the degree of continuing dependency on death benefits.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Dan J. Hermansen vs. A1 Quality Glass/Safelite and/or Workers’ Compensation Fund
Case Number --20021185
Court/Judge --Hann
Verdict/Settlement --Order, 3/03
Amount --The ALJ found claimant did not file his application for a further hearing in a timely fashion as Utah law requires if an injured worker is to qualify for continuing workers’ compensation benefits. The ALJ therefore dismissed this claim without prejudice.
Injuries --Claimant suffered a knee injury.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Floyd Holm
Facts/Contentions --Claimant was injured in December of 1982, and employer/carrier accepted liability and paid him disability compensation and medical benefits, including permanent partial disability benefits for a 6.4% related lower-extremity impairment to his knee. In 2002, claimant filed this application for further benefits based on a 15% related whole-person impairment rating. However, the ALJ noted, that impairment rating was dated July 19, 1982, before the industrial injury occurred. The ALJ also found that the date of the impairment rating on which this claim is based would be barred by the statute of limitations even if it did not antedate the industrial injury.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --James D. Bartlome vs. Larry H. Miller Dodge/Hyundai and/or Atlantic Mutual Insurance Company
Case Number --99757
Court/Judge --George
Verdict/Settlement --Order, 3/03
Amount --The ALJ ordered employer/carrier to pay claimant’s outstanding medical bills in the amount of $364.33 and $231, for a total of $595.33. The ALJ found that the rest of the bills, totaling approximately $4,700, are non-industrial and are therefore claimant’s responsibility; he agreed to submit them to his personal insurance carrier.
Attorney(s) - Plaintiff --David Parker of Parker, Freestone & Angerhofer (withdrew); claimant was later represented pro se.
Attorney(s) - Defense --Stuart F. Weed of Kirton & McConkie
Damages --Claimant sought payment of $5,300 in medical expenses, prescription costs and mileage which he claimed were related to his industrial injury.
Facts/Contentions --Claimant’s case was resolved by an order issued in July of 2002, but claimant submitted a motion to show cause on grounds that employer/carrier failed to pay claimant’s medical expenses as the order directed. After the motion was filed, claimant’s attorney withdrew and waived any attorney lien, and the ALJ scheduled a hearing on the motion.
At the hearing, employer/carrier disputed whether all the expenses submitted were related to claimant’s industrial injury. The parties debated the matter and eventually reached an agreement, whereupon the ALJ issued this order.

INDUSTRIAL DEATH
Case Type --WD, WA; Claim for work-related death benefits
Case Name --Deborah L. Blanken vs. W. R. White Company and/or Great American Insurance Company and Ohio Casualty Group
Case Number --2001844
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 3/03
Amount --The ALJ found claimant failed to provide proof that could justify a change in the ALJ’s previous finding that claimant was only partially dependent on decedent’s death benefits. The ALJ therefore re-affirmed his previous order awarding claimant $228 per week based on her continued partial dependency.
Injuries --Claimant’s husband was killed in the course and scope of his employment.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Mark D. Dean of Blackburn & Stoll
Facts/Contentions --Claimant’s husband was killed in a motor vehicle accident while working for employer White, and claimant sought death benefits. Employer/carrier accepted liability, and the ALJ issued a Surviving Spouse Benefit Order in July of 2001. However, employer/carrier filed a motion with the Labor Commission for review of the order, contending that claimant was not wholly dependent on decedent’s death benefits. The Labor Commission remanded the case to the ALJ, ordering the ALJ to hold an evidentiary hearing on the issue of dependency, and the ALJ held that hearing as ordered in October of 2001. Pursuant to the evidentiary hearing, the ALJ found claimant to be partially dependent on decedent’s death benefits and modified the award of benefits accordingly. Claimant filed this motion for a new hearing in July of 2002, contending that her circumstances had changed and she was again wholly dependent on the death benefits. The ALJ scheduled another hearing.
At this hearing claimant testified without rebuttal; she later provided several documents which the ALJ disregarded as they were presented after the hearing and closure of the evidentiary record. Claimant did, however, present evidence at the hearing confirming that she lost her job and was currently only working part-time, earning $100 per week, a reduction of $560 per year from her former income. Claimant provided medical bills but did not verify what portion of the bills were covered by her insurance carrier. Claimant stated that she had a root canal for $900, but did not provide any documentation. The ALJ noted that according to the proof claimant provided, her quantifiable expenses actually went down $21.25 from the total at the previous hearing.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Carol Armstrong vs. Henrie Construction and Workers’ Compensation Fund
Case Number --2002153
Court/Judge --Eblen
Verdict/Settlement --Order, 3/03
Amount --The ALJ noted that all of the physicians in the case found degenerative changes in claimant’s spine which pre-dated her alleged industrial injury. Claimant therefore, under Utah case law, must prove that her work activities which caused the injury exceeded those which a person might perform in everyday life (the Allen test). The ALJ found that claimant’s story of throwing rock chips over her shoulder was not credible, and the actions involved in spreading the chips out in front of the front-end loader did not meet the Allen test, being similar to those a person might perform while shoveling snow or gardening. The ALJ therefore dismissed this case with prejudice for lack of proof of legal causation.
Injuries --Claimant suffered a cervical spinal injury; an MRI revealed small central disc herniations at C3/4 and C6/7, with a broad-based spondylitic disc at C5/6. Claimant also had degenerative changes in her cervical spine. She underwent a course of physical therapy.
Attorney(s) - Plaintiff --T. Jeffery Cottle, Orem
Attorney(s) - Defense --Eugene C. Miller Jr.
Expert Witness(es) - Plaintiff --Dr. David Heiner; Dr. Daniel Fults
Expert Witness(es) - Defense --Dr. Steven Warner; Dr. Robert Miska; Dr. Jeff Chung--independent medical evaluation; Del Felix, PT--functional capacity evaluation
Facts/Contentions --Claimant worked for employer as a truck driver. She stated that she was working with a crew applying rock chips to a road and to several driveways along it. The crew began work at 7 AM, and claimant first experienced pain in the back of her neck and down the back of her shoulder and arm at about 4:30 PM. She said she was using a square shovel to remove rock chips from a front-end loader and spread them on a driveway, flinging them over her shoulder while facing the front-end loader and looking over her shoulder to be sure she threw them accurately. Claimant stated that she alternated sides while throwing the rock chips. She stopped working and reported the injury to her supervisor when she felt the onset of pain, and sought care at a local emergency room the following day.
Employer’s superintendent testified that rock chips are not spread in the manner claimant described; rather, they are broadcast in front of the worker in a fan-like distribution. The shovels used by the crew hold about 7 1/2 pounds of rock chips. The supervisor, who trained claimant in the method of spreading rock chips, testified that he saw claimant at work on the day she was injured, and she was not throwing the rock chips over her shoulder. Another employee also testified that workers could not throw rock chips over their shoulders because they would hit other members of the crew. The co-worker also testified that the crew members alternated jobs throughout the day so that no one spread rock chips for more than three hours.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Gina R. Charlesworth vs. Wild Oats Markets, Incorporated and/or ITT Hartford
Case Number --20011180
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 3/03
Amount --The ALJ found that a causal relationship existed between claimant’s pulmonary embolism and her industrial injury, since the embolism was the natural result of claimant’s spending long periods of time in her recliner to ease the pain of the back injury. Under Utah law, employer/carrier must therefore pay benefits for both injuries. The ALJ ordered employer/carrier to pay claimant $3,631.02 in accrued temporary total disability compensation, $3,304.08 in accrued permanent partial disability compensation for her 3% related whole-person impairment, and $395.12 in accrued temporary partial disability compensation. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses.
Injuries --Claimant suffered lumbar and sacroiliac joint strain. While she was resting to heal this strain, she suffered a pulmonary embolism.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Bruce Newton, MD; Dr. Kurt Francis, MD--vascular specialist
Expert Witness(es) - Defense --Dr. Stephen Marble--independent medical evaluation
Facts/Contentions --Claimant stated that she was lifting an 80-pound box of frozen chickens at work when she twisted and her low back popped. She sought medical care seven days later, after her pain continued to worsen, and her employer accepted liability for her back strain injury. Claimant said she reduced her work schedule to three hours per day after she was injured, and also began sitting in her recliner for six hours per day and sleeping in it at night instead of in her bed because doing so eased her pain. She went to a local emergency room after experiencing severe chest pains and was diagnosed with a pulmonary embolism.
Employer/carrier contended that the pulmonary embolism was not caused by claimant’s industrial injury; however, the ALJ noted that both claimants and employer/carrier’s physicians felt the embolism was caused by claimant’s sleeping and sitting for long periods in her recliner.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Dan Davis vs. Clayco, Incorporated and/or Commercial Compensation
Case Number --2000911
Court/Judge --Hann
Verdict/Settlement --Order, 3/03
Amount --The ALJ found that claimant’s work activities were the direct cause of his disability, since he could perform dry-walling work before the injury and has not been able to do so since. The ALJ therefore issued a preliminary determination of permanent and total disability and ordered employer/carrier to pay claimant subsistence benefits of $414 per week beginning 2/27/01, with accrued benefits due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant accrued outstanding temporary total disability benefits of $18,309.83 and accrued outstanding permanent partial disability benefits of $8,037 for his 13% related whole-person impairment. These benefits are due and payable in a lump sum plus interest, less credit for any further amount already paid, and less attorney’s fees as detailed above. Employer/carrier must also pay all claimant’s related medical expenses. The ALJ will schedule further proceedings as required by Utah law in order to issue a final finding of permanent and total disability.
Injuries --Claimant suffered a large paracentral foraminal disc extrusion and herniation at C6/7 with compression to the C7 nerve root. He underwent discectomy and fusion surgery, and has also undergone four low back surgeries for non-related problems. Claimant has reached medical stability, but has not been released to return to work because he must change positions every 20 minutes and lie down for 10 minutes every hour. He is a 43-year-old high school graduate, and his only work experience is hanging dry-wall.
Attorney(s) - Plaintiff --Bradford D. Myler of Myler Law Office, Orem
Attorney(s) - Defense --Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel.
Damages --Employer/carrier paid claimant $31,447 in temporary total disability benefits, as well as a portion of the permanent partial disability benefits for his 13% related whole-person impairment rating. Of the latter benefits, $8,307 remained unpaid.
Facts/Contentions --Claimant worked as a dry-wall framer and taper. He said he was hanging sheet rock in an oddly shaped area behind a stair-well, and had to keep lifting the sheet rock and make minor adjustments to its size in order to get it to fit. The sheet rock weighed 140 pounds, and claimant lifted it with another employee, with claimant standing on the edge of the stair-well leaning over the edge and holding the top of the sheet rock level with his arm extended. Claimant said he felt a pop in his neck, after which he had to push the sheet rock hard to get it to fit into place while leaning out over the stair-well. He left work one or two hours early that day because he could no longer grasp with his left hand after this incident. He said he rested over the weekend and went back to work on Monday, but slipped on ice while taping dry-wall and aggravated the pain in his neck and arm. He sought treatment seven days later and has not been able to return to work since his neck surgery. While recovering from the surgery, he sneezed and felt a return of pain in his neck and left arm.
The medical panel found claimant has stabilized medically but should not return to his former work; the panel awarded claimant a 13% related whole-person impairment rating. The panel restricted claimant to light duty work with use of only one arm.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --Muradif Suljic vs. Affiliated Metals and/or ESIS
Case Number --2000733
Court/Judge --George
Verdict/Settlement --Order, 4/03
Amount --The ALJ stated in his opinion that he found employer/carrier’s witnesses and records convincing and believable, and they proved claimant failed to notify his employer of his alleged industrial injury within the time allowed by law. The ALJ therefore dismissed this claim with prejudice as barred under Utah statute.
Injuries --Claimant suffered a back injury.
Attorney(s) - Plaintiff --Richard M. Burke of King, Burke & Schaap
Attorney(s) - Defense --Dori K. Petersen of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Larry Sveen, PA; Dr. Dan S. Albu-Zaruba
Facts/Contentions --Claimant stated that he slipped and fell while preparing a shipping package, when he went outside and tried to pick up a pallet that had frozen to the ground. He said he was reported the accident to his supervisor, but the supervisor ignored his complaint. He said he was off work because of his fall from the day it happened through the date of his hearing.
Employer/carrier denied that claimant’s injury was industrial and stated that the first notice they received of the injury was when they were sent the request for an answer to claimant’s application for a hearing.
Dr. Albu-Zaruba’s records did not list any mention of a fall at work as a cause of claimant’s back problems. PA Sveen’s records listed the cause of the injury as heavy lifting at work, but did not mention a fall. A co-worker testified that on the day of the alleged fall, the co-worker heard claimant call for help, went outside, found claimant on the ground in obvious pain, and helped him get up and go indoors. Employer/carrier called several other company employees, including claimant’s immediate supervisor, and they testified that claimant made no report of a fall on the day in question, never asked to see a doctor, and did not seem to be in pain from the way he moved. Other company employees who testified for employer/carrier were a truck driver, a co-worker of claimant’s, and a loader, none of whom ever heard that claimant suffered a fall at work or had been injured. Company records showed that claimant continued to work for three months after the alleged fall.

FALL
Case Type --WA, SF; Work-related fall
Case Name --Dean J. Sorensen vs. Big D Construction and/or Liberty Mutual Insurance Company
Case Number --20011082
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 4/03
Amount --The ALJ accepted the medical panel’s report and ordered employer/carrier to pay claimant’s related medical expenses, including those for the physical therapy and narcotic pain prescriptions.
Injuries --Claimant suffered a left hip fracture and underwent four surgeries. The second surgery was a total hip replacement, and it was followed by two revision surgeries. Claimant received a 20% related whole-person partial impairment rating.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Dori K. Petersen of Blackburn & Stoll
Expert Witness(es) -- Because of conflicting medical testimony, the parties waived a hearing and stipulated to the referral of this case directly to a medical panel composed of Joseph Jarvis, MD--occupational medicine specialist and chair; Dennis Gordon, MD--orthopedic surgeon; and Stephen Lordan, MD--pain management specialist.
Damages --Employer/carrier paid claimant for his related permanent partial whole-person impairment, as well as his surgical expenses. At the hearing, they agreed to pay $4,060 in outstanding medical bills.
Facts/Contentions --Claimant suffered an 11-foot fall onto his left hip at work. Claimant originally filed a claim for permanent total disability benefits, but withdrew it at the hearing.
Employer/carrier accepted liability, but questioned the medical necessity of the treatment claimant received for the injury; this treatment included narcotic pain prescriptions and physical therapy. Claimant said he was receiving the physical therapy for an altered gait which he attributed to the fracture and subsequent surgeries to repair it.
Claimant owns a 26-acre farm in addition to working for employer, and it was documented that he spends about 2 hours a day feeding the cattle, lifting at least two large bales of hay with a pitchfork daily and walking around the farm.
The medical panel found that claimant has not stabilized medically from his industrial injury and requires ongoing treatment, including physical therapy and narcotic pain medications.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Christina Singh vs. Papa John’s
Case Number --2002476
Court/Judge --Poelman
Verdict/Settlement --Order, 4/03
Amount --The ALJ found claimant was entitled to $7,020 in temporary total disability benefits, $1,044.86 in temporary partial disability benefits, and $1,312.74 in permanent partial disability benefits for her related whole-person permanent partial impairment (the ALJ accepted Dr. Knorpp’s 2% rating as the most objective). The ALJ therefore found that claimant was overpaid $4,768.66 in temporary total disability benefits; she is therefore not entitled to any further benefits, and employer is entitled to a credit of $4,768.66 against its liability for any future workers’ compensation benefits due claimant.The ALJ dismissed this claim for benefits with prejudice.
Injuries --Claimant suffered a left wrist injury. Dr. Greene rated her related whole-person impairment at 3%, while Dr. Knorpp gave her a 2% related whole-person impairment rating.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Mark Greene
Expert Witness(es) - Defense --Dr. Scott Knorpp
Damages --Self-insured employer paid claimant $14,146.26 in temporary total disability benefits and also paid her medical expenses; however, employer claimed it overpaid claimant’s temporary total disability benefits.
Facts/Contentions --After claimant was injured at work, her employer accepted liability for her injury, but the parties disagreed on claimant’s degree of related permanent partial whole-person impairment. Employer contended that claimant refused to sign a proposed compensation agreement related to permanent partial disability benefits; employer also contended that it overpaid claimant more in temporary total disability benefits than she sought in permanent partial disability benefits.
Dr. Knorpp felt the ongoing treatment claimant was receiving for her injury was not medically necessary. Dr. Greene also felt claimant was medically stable. Because the impairment ratings from the two physicians did not differ by more than 5%, the ALJ was not required by law to refer this case to a medical panel.

ORDER ON MOTION FOR REVIEW
Case Type --MS; Miscellaneous (UOSH violation)
Case Name --Utah Division of Occupational Safety and Health vs. Autoliv ASP, Incorporated fka OEA Incorporated
Case Number --5301165544
Court/Judge --This order was issued by the Appeals Board of the Utah Labor Commission, with two members agreeing and one agreeing in part and dissenting in part.
Verdict/Settlement --Order, 4/03
Amount --The Appeals Board found that Autoliv had violated the safety statute; the Board therefore upheld the ALJ’s citation, but felt the violation was “other than serious” and therefore reduced the penalty from $700 to $500. The dissenting Board member agreed with the finding on the violation, but felt the Board should have upheld the ALJ’s finding that the violation was “serious.”
Attorney(s) - Plaintiff --Deidre Marlowe, UOSH staff attorney
Attorney(s) - Defense --Scott A. Hagen and Grant M. Sumsion of Ray, Quinney & Nebeker
Facts/Contentions --Autoliv manufactures highly explosive chemicals, and UOSH cited it for failure to update its hazard compliance analysis process and perform ongoing hazard compliance audits. Autoliv, objected to the citation and requested a hearing, and ALJ Eblen conducted one according to Utah law. ALJ Eblen upheld the citation and imposed a penalty fine of $700 for a “serious” violation of the safety statute, and Autoliv requested this review by the Appeals Board.
The Board found the evidence submitted at the hearing proved Autoliv properly conducted its initial process analysis identifying, evaluating and controlling the hazards involved in its manufacturing process; the Board also found Autoliv re-validated the analysis process every five years as required by the statute, since Autoliv established by testimony and documentation that it followed a continuous process for evaluating its processes and hazards. However, the Board found that Autoliv failed to document its 3-year compliance audits of the analysis process, since all it submitted regarding these audits was a signature sheet that listed the attendees. The Board found that in order to document these audits properly, Autoliv should have submitted the employer’s certification of compliance, report of findings made in the audit and documentation of corrections, and two recent audit reports as required by 29 CFR Section 1910.119(o).

WORK INJURY
Case Type --WA; Work-related injury
Case Name --(Name of case withheld)
Case Number --200227
Court/Judge --Eblen
Verdict/Settlement --Order, 4/03
Amount --The ALJ noted in her opinion that Utah law exempts an employer from liability for an industrial injury if the worker’s blood alcohol level is 0.08% or higher at the time of the injury. If such a reading is obtained, the law presumes that alcohol use was the major cause of the injury. In this case, the only figure available was a urine alcohol level. The ALJ noted that the Utah Legislature specified urine testing for THC levels, but blood or breath testing for alcohol levels, when it wrote the law, so the lawmakers obviously intended that the test for alcohol levels should be either a blood or a breath test. Since no such test was administered in this case, the ALJ therefore found that no evidence was submitted to convert the urine alcohol level to a blood or breath level, and the urine alcohol levels were not sufficient proof to support an argument that claimant’s use of alcohol was the major cause of his injury. The ALJ therefore found employer/carrier failed to provide legal proof of its contention that claimant was intoxicated on alcohol at the time he was injured.
The ALJ also found that claimant’s urine THC levels at the time of the injury were not high enough to exclude the possibility of passive (secondhand) inhalation under the law. (The legal threshold is 50 nanograms/ml; claimant first tested at 50, but received a confirmatory test level of only 15.) The ALJ postulated that claimant’s sleep deprivation might have been a contributing cause of the accident. However, she noted that employer did not present any testimony to prove that claimant appeared impaired in any way on the morning of the accident.
The ALJ also noted that the statute does not exempt an employer from liability for an industrial accident caused by intoxication if the employer had actual knowledge of, permitted or encouraged the injured employee’s use of a controlled substance. In this case, the undisputed evidence proved the crew boss knew of claimant’s alcohol use, but the ALJ felt it was unclear whether such knowledge could thereby be attributed to the employer.
Taking into consideration the foregoing laws and findings, the ALJ ruled that employer/carrier was liable under the law for claimant’s industrial injury and owed claimant medical expenses and workers’ compensation benefits, with the amount of those benefits to be determined at a later date.
Injuries --Claimant suffered the traumatic amputation at the distal joint of his index and middle fingers on the left hand.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --Mark D. Dean of Blackburn & Stoll
Facts/Contentions --Claimant said he went to check the pumps at the drilling rig where he worked as a derrick hand, and he saw that the oil pump was not working to lubricate the larger mud pump, which indicated a belt failure. He said he could not shut off the oil pump to replace the belt without shutting off the entire mud pump, so he and other workers were used to re-installing the belt on the shaft, which had no pulley on it, while both pumps were running. However, this time, when he took the safety guard off the belt to adjust the tension, he inadvertently touched the side of the belt with his glove, and the glove got caught and pulled his hand into the machine, amputating the tips of two fingers on his left hand. He said he had worked as an oil rigger for 40 years at the time he was injured, and knew the standard operating procedures well, including the common replacement of pump belts while the mud pump was running.
Employer/carrier contended that claimant attended a party with four or five members of the drilling crew the night before he was injured, and at the party claimant consumed alcohol and was exposed to secondhand marijuana smoke. All the members of the drilling crew, including the crew boss, drank alcohol at the party and drove to work together the following morning. Employer/carrier contended that claimant had only three hours of sleep after leaving the party before coming back to work; employer/carrier argued that claimant was still intoxicated when he arrived at work, and that this intoxication was the major cause of his injury. Under Utah law, an employer is not liable for injuries suffered by intoxicated workers.
Claimant said he had been a drinker since he was a young man, and could probably handle more alcohol than an occasional drinker; he said he did not feel unsteady or shaky on the morning after the party and felt he was capable of doing his job, which was why he did not call in sick. Claimant’s urine tested positive for THC (cannabis) and his urine alcohol level was 0.12% when he was tested at the emergency room where he was taken for treatment following the accident.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Roger Kent vs. Summit Service and Repair and Workers’ Compensation Fund
Case Number --2002981
Court/Judge --Eblen
Verdict/Settlement --Order, 4/03
Amount --Pursuant to the events which transpired at the hearing, the ALJ ordered employer/carrier to pay claimant’s related medical expenses, including those for the recommended eyeglasses, and also to pay mileage reimbursement for claimant’s travel to seek medical treatment upon receipt of a properly documented mileage reimbursement claim including dates of service, physician seen, and mileage traveled. The ALJ dismissed the claim for permanent total disability benefits.
Injuries --Claimant suffered a scar on his cornea which some medical providers have indicated might be repairable with surgery, though claimant did not submit any medical evidence indicating that surgery has been recommended. Claimant has not received a related permanent impairment rating.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Hans M. Scheffler
Expert Witness(es) - Plaintiff --Dr. Chou--treating physician
Damages --Employer/carrier paid claimant $4945.88 in medical expenses and $195 in temporary partial disability benefits.
Facts/Contentions --Claimant was injured while working under a car, when a piece of metal fell into his left eye. He originally claimed permanent total disability, but withdrew this claim at the hearing, stating that he intended to seek permanent partial disability benefits. Employer/carrier accepted liability and paid benefits, but disputed the permanent total disability claim. At the hearing, employer/carrier agreed to pay for the eyeglasses which claimant’s treating physician recommended to correct some of the vision problems caused by the scar on claimant’s cornea; employer/carrier also agreed at the hearing to pay claimant’s future related medical expenses.

WORK INJURY
Case Type --WA, OC; Work-related injury, ongoing case
Case Name --Heather Lynn Brown vs. Scott and Barbara Walker dba Blimpie’s and Uninsured Employers’ Fund
Case Number --20021238
Court/Judge --Hann
Verdict/Settlement --Order, 4/03
Amount --The ALJ issued an order declaring that claimant’s uninsured employers were in default and therefore liable for claimant’s work injury, with the amount of workers’ compensation benefits they owe to be determined at a later hearing.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Respondents Scott and Barbara Walker did not file an answer to claimant’s application for a hearing. For UEF: Sheryl Hayashi
Facts/Contentions --Claimant filed an application for a hearing stating that she was injured at work. When her employers failed to answer or appear within the 30 days allowed by law, the ALJ issued this order.

WORK INJURY/FALL
Case Type --WA, SF; Work-related injury, work-related fall
Case Name --Alden J. Bullock vs. Granite School District
Case Number --2002271
Court/Judge --Poelman
Verdict/Settlement --Order, 3/03
Amount --The ALJ dismissed this claim for lack of medical causation.
Injuries --Claimant suffered a right-sided foraminal and lateral disc herniation at L4/5 which compressed the right nerve root. He underwent physical therapy and was ready to return to work in two months.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Thomas C. Sturdy of Blackburn & Stoll
Facts/Contentions --Claimant worked as a truck driver for self-insured employer, transporting food from the Granite District’s central kitchen to the schools. On the day of his injury, he stated, he had pain in his hip when he went to work. He said he was loading his truck when he could no longer stand the pain in his right hip and fell. After another employee helped him into the school and he lay down for a few minutes, he sought treatment at a local emergency room.
Employer contended that claimant had suffered pain in his right hip for ten years at the time of his injury, and the injury was therefore pre-existing and non-industrial. Claimant did not submit any evidence from a physician to back up his claim that the disc herniation resulted from his work activities over those ten years.

ORDER ON REMAND
Case Type --OD; Occupational disease claim
Case Name --Sherry Crane vs. Jordan School District
Case Number --00-1076
Court/Judge --This order was issued by Utah Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 3/03
Amount --The Commissioner found that the ALJ incorrectly denied claimant medical benefits despite the medical panel’s finding that the industrial exposure temporarily aggravated claimant’s asthma, and her medical expenses were therefore work-related. The ALJ’s basis for the denial was that claimant had not submitted a claim for medical benefits; however, the Commissioner found claimant had requested medical benefits in her application for a hearing. The Commissioner noted that claimant abandoned her claim for permanent total disability benefits and instead requested temporary total disability benefits in light of the medical panel’s conclusions. The Commissioner therefore remanded the case to the ALJ for an award of medical expenses and also for adjudication of the claim for temporary total disability benefits, saying he knew of nothing in Utah law which would preclude the adjudication of such a claim after a medical panel’s findings prompted the claimant to change it.
Injuries --Claimant suffered an aggravation of pre-existing asymptomatic asthma.
Attorney(s) - Plaintiff --David C. Cundick
Attorney(s) - Defense --Thomas C. Sturdy of Blackburn & Stoll
Expert Witness(es) --This case was referred to a medical panel.
Facts/Contentions --Claimant originally contended that her exposure to chemical odors caused her chronic asthma. The medical panel found that she suffered from asymptomatic asthma which was aggravated by her industrial exposure, and that the medical treatment claimant received at the time of the exposure was necessitated by the work exposure. However, the ALJ denied medical benefits. Claimant filed this appeal for review.

FALL
Case Type --WA, SF; Work-related slip/fall, industrial injury
Case Name --Rita Whitesides vs. Denny’s and R S K Company
Case Number --20011308
Court/Judge --Eblen
Verdict/Settlement --Interim order, 4/03
Amount --The ALJ noted in her opinion that the existence of a pre-existing condition triggers the Allen test, which requires an injured worker wishing to qualify for workers’ compensation benefits to prove that the work activities which caused the injury or aggravation exceeded those a person would encounter in everyday 21st-century life. The pre-condition that triggers the Allen requirement need not be symptomatic; this requirement is intended to distinguish between pre-existing conditions whose symptoms would eventually have presented anyway, but just happened to do so during work hours, and those pre-existing injuries where work activities increased the risk of injury to a level above that faced by the worker in everyday life. Since claimant did not seek medical care for her slip/fall, and her employer did not file an employer’s first report of injury, and since claimant did not call her supervisor to testify about the circumstances of her fall, the ALJ found claimant did not succeed in proving that the fall constituted an industrial injury. The ALJ thus felt claimant could not rely on the alleged industrial fall as a triggering incident for the low back pain. Given the differences of medical opinion regarding claimant’s injuries and their causes, the ALJ wrote in her opinion that she found it impossible to determine whether claimant had a pre-existing asymptomatic medical condition that contributed to the injury caused by the twisting incident. The ALJ therefore referred this case to a medical panel.
Injuries --Claimant stated that she injured her ribs and lower back in the fall and the second industrial injury exacerbated the first damage; her employer disputed the low back claim because the medical record did not indicate that claimant complained of low back pain to her medical providers after this incident occurred. Dr. Morgan gave claimant a 6% whole-person permanent related impairment rating for her myofascial pain and left S1 radiculopathy. A functional capacity evaluation with Dr. Morgan revealed that claimant can lift 35 pounds maximum and 20 pounds frequently, floor to knuckle; 25 pounds maximum and 15 pounds frequently, knuckle to shoulder; and 20 pounds maximum and 15 pounds frequently, shoulder to overhead; she can push 60 pounds; pull 100 pounds; carry 25 pounds for 100 feet; sit 30 to 45 minutes; stand 6 hours; and walk more than 1 mile. Dr. Morgan declared claimant medically stable and gave her a permanent 20-pound lifting restriction, but opined that she can work 8 hours per day. Dr, Bradley Melville--physiatrist--found some degenerative disc disease, but no disc herniation, no evidence of radiculopathy, and no clinical evidence of trochanteric bursitis or pyriformis syndrome. Dr. Melville recommended work restrictions of 6 hours per day, physical therapy with work hardening and Mackenzie exercise, and a lumbar stabilization program. He rated claimant’s related whole-person impairment at 5%. Dr. Houden found multiple bulging discs throughout the lumbar spine from L1/2 through L5/S1. Dr. Houden also found multiple tender points, mostly over the sacroiliac joints and the L5/S1 and L4/5 levels, mostly consistent with facet arthritis for the sacroiliac pain or myofascial syndrome for the lumbar pain. Claimant has facet arthritis throughout all the levels of her spine. Dr. Houden felt claimant was a possible candidate for IDET, surgery, or chronic low-dose long-acting narcotics. His recommendations were apparently denied by employer’s insurance carrier, but Dr. Melville and Dr. Houden both recommended a discogram. Dr. Moress felt it was very unusual that the onset of claimant’s symptoms occurred after such an inconsequential work activity, and he felt that claimant’s pain resulted from age-related degenerative changes in her spine. Dr. Alsup found a disc herniation at C5/6. His interviews with claimant indicated that the twisting incident at work was the first time claimant had ever presented with back pain or symptoms of back injury. He therefore concluded that if she had never before had a low back injury or low back pain, these problems resulted from an acute incident which happened on the job. He also concluded that if she had asymptomatic degenerative disc problems before the twisting incident, these problems would have put her at risk for injury from what would have been a minor event for someone else. Dr. Alsop felt the compression fracture could have happened at the time of the twisting incident, or it could have happened earlier, setting claimant up for chronic pain developing from the twisting incident.
Attorney(s) - Plaintiff --Elwood P. Powell of Powell & Lang, Ogden
Attorney(s) - Defense --Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Expert Witness(es) - Plaintiff --Dr. Brian Morgan--physiatrist; Dr. Bradley Melville--physiatrist; Dr. Timothy Houden--pain management specialist; Dr. Alsup
Expert Witness(es) - Defense --Dr. Gerald R. Moress--independent medical evaluation physician
Facts/Contentions --Plaintiff stated that she was carrying two metal pans stocked with “to go” items to a storage area at the restaurant; the time was near the end of her shift. Plaintiff stated that she slipped and fell on a slick floor, and her manager found her and helped her up. Claimant did not lose any time off work from this accident. Two months later, claimant stated, she turned to pick up two glasses and a coffee cup from the next table and felt immediate low back pain. She had the next two days off, so she rested at home and took another day off as well before reporting back to work, since it was Christmas Eve and a mandatory work day. She stated that her manager drove her to work that day and brought her home because she could hardly walk. She sought treatment at an internal medicine clinic that same day. Claimant took three weeks off and then returned to work. She could only work 4 hours per day, walking three miles to and from work and feeling very sore by the time she returned from her shift.
X-rays were originally read to show an old compression fracture of L2 along with a sacroiliac joint dysfunction, an old bulging disc, and arthritis in the lumbar spine; electro-myelographic studies revealed abnormal spontaneous activity in the S1 innervated musculature of the left leg and paraspinals. Claimant underwent two courses of physical therapy, which seemed to help with her pain; she also received two series of trigger point injections for myofascial pain, as well as several additional individual trigger point injections.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --(Name of case withheld)
Case Number --2002437
Court/Judge --Poelman
Verdict/Settlement --Order, 4/03
Amount --The ALJ found claimant had failed to prove that the lifting incident occurred or that he sustained the industrial injuries he claimed in the alleged incident. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant stated that he suffered low back, hip and leg injuries; his employer contested his claim.
Attorney(s) - Plaintiff --John Spencer Snow
Attorney(s) - Defense --Elliot K. Morris
Expert Witness(es) - Plaintiff --Dr. James Peterson; Shawn D. Campbell, DC
Expert Witness(es) - Defense --Dr. Gerald R. Moress; Dr. Scott Knorpp
Facts/Contentions --Claimant stated he experienced back, hip and leg pain while lifting engine parts out of a car he was working on at his employer’s repair shop. He said he reported the incident to his employer, but no other testimony or documentation was received to verify this claim. The first reference to the claimed accident found in the medical record did not appear until eight months after its alleged date--more than four months after claimant quit his job. He stated that he quit because of ongoing pain which made it difficult for him to continue to work, but later admitted that he quit the day after an altercation with his employer generated by the employer’s suggestion that claimant was overstating the amount of work he performed on particular jobs.
Employer/carrier argued that the part-lifting incident was not the cause of claimant’s injury, if it actually occurred. Employer/carrier noted that claimant apparently told his chiropractor that he had been experiencing hip and leg pain after “doing lots of driving,” and that the pain might have begun a week before the date of the alleged industrial incident. None of claimant’s treating physicians ever noted in their records that claimant said his pain had an industrial cause.

REPETITIVE STRESS INJURY
Case Type --WA, SI; Work-related repetitive stress injury
Case Name --James Carlson vs. Salt Lake City Corporation (self-insured)
Case Number --2002603
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 4/03
Amount --The ALJ found claimant suffered a 10% related whole-person impairment, and the treatment he received for his industrial injury was reasonable and necessary, even after he stabilized medically. The ALJ therefore ordered Salt Lake City to pay claimant accrued permanent partial disability benefits of $11,013.60 for his related 10% whole-person impairment; this award is due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Salt Lake City must also pay claimant’s related medical expenses, including the bills for the medical visit and prescriptions which it refused to pay because they were incurred after claimant reached medical stability.
Injuries --Claimant suffered right lateral epicondylitis; right radial tunnel syndrome; right Wartenberg’s Syndrome; and right cubital tunnel syndrome. Dr. Burrows provided the only evidence on permanent impairment presented at the hearing; he gave claimant a 10% related permanent whole-person impairment rating. Employer contested this rating, but did not present ant medical testimony to back up its objection.
Attorney(s) - Plaintiff --David Smith
Attorney(s) - Defense --Martha Stonebrook, Assistant Salt Lake City Attorney
Expert Witness(es) - Plaintiff --Douglas Burrows, MD
Damages --At the hearing, the parties agreed that employer had paid claimant all the temporary total disability benefits to which he was entitled.
Facts/Contentions --Claimant worked for Salt Lake City’s Division of Water Reclamation as a waste-water plant operator; his duties included running and monitoring equipment, and he frequently had to shovel 30- to 65-pound loads of debris onto a truck with a flat-nosed shovel. He stated that he was shoveling debris when he felt a pinch and a pop in his right elbow, followed by a burning sensation. He said he finished his shift, rested over the weekend, and reported his industrial injury to his supervisor the next Monday when his pain did not abate.
Employer/carrier accepted liability and paid temporary total disability benefits, but disputed the whole-person impairment rating provided by Dr. Burrows and also refused to pay any further medical expenses after claimant reached medical stability. In an effort to dispute the impairment rating, employer/carrier presented videotapes at the hearing showing claimant using his right arm in various manners; however, they did not present any conflicting medical testimony concerning the impairment rating. Salt Lake City failed to provide any medical testimony indicating that the treatment claimant received after he reached medical stability was not medically reasonable or necessary to treat his industrial injury.

WORK INJURY
Case Type --WA: Work-related injury
Case Name --Eduardo Guzman vs. Perry Olsen Drywall, Incorporated and/or Reliance Insurance Company/Cambridge Integrated Services, Incorporated
Case Number --2002156
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 4/03
Amount --The ALJ found that the evidence in the case bore out the reasonable medical necessity for the 29 chiropractic treatments claimant received, and therefore ordered employer/carrier to pay for the 29 treatments, as well as for any and all other medically necessary and reasonable treatments for claimant’s industrial knee injury.
Injuries --Claimant was diagnosed with a complete tear of his right anterior cruciate ligament, as well as the proximal end of his medial collateral ligament. He also had a probable small avulsion of bone in the region of the proximal insertion of the medial collateral ligament, and a tear of the medial patellar retinaculum. Claimant underwent two knee surgeries. Two MRI’s of claimant’s lumbar spine revealed progressive degenerative changes of the L2/3 through L4/5 segments with increasing vertebral endplate osteophyte formation and stable anterior wedging of the T12 and L1 vertebral segments. His treating physicians felt the alteration in claimant’s gait caused by his knee injuries exacerbated his pre-existing degenerative back problems. Dr. Fotheringham gave claimant a 14% related whole-person impairment due to his right knee injuries, but felt he suffered no industrial impairment due to his spinal condition.
Attorney(s) - Plaintiff --David S. Pace of Pace & Hughes
Attorney(s) - Defense --Mark A. Riekhof of Dunn & Dunn
Expert Witness(es) - Plaintiff --Dr. James Antinori; Dr. Peter Lacrum; Dr. Brian Chong; Dr. Bart Fotheringham; Dr. Patrick Greis; Theodore Conger, DC
Damages --Employer/carrier paid claimant $13,540.80 for his 14% related whole-person impairment, and they also paid him temporary total disability compensation, pursuant to a settlement agreement, at the rate of $447 per week for the 9 months he was off work due to his knee surgeries. At the hearing, claimant withdrew his claim for additional temporary total disability compensation.
Facts/Contentions --Claimant fell three to four feet off a scaffold at work, landing on his right knee. Employer/carrier accepted liability and paid benefits, but disputed the claim for additional temporary total disability compensation and objected to the chiropractic treatment claimant received, contending that it was excessive. Dr. Fotheringham conceded the reasonableness of 20 chiropractic treatments, and Dr. Conger performed 29, billing $329.60 (since the disputed outstanding chiropractic bill was less than $10,000, the ALJ was not required by law to refer this case to a medical panel).

WORK INJURY
/OCCUPATIONAL DISEASE
Case Type --WA, OD, SI; Work-related repetitive stress injury, occupational disease claim
Case Name --Linda R. Acosta vs. Salt Lake Regional Medical Center and Liberty Mutual Insurance Company, American Manufacturers Mutual Insurance, Sentry Insurance and Workers’ Compensation Fund
Case Number --2002959, 2002958
Court/Judge --Eblen
Verdict/Settlement --Order, 4/03
Amount --ALJ Eblen noted in her opinion that review of the record of the prior claim clearly indicated the presence of facts from which claimant could have developed a repetitive trauma theory of the accident as a strategy for seeking benefits. However, the ALJ continued, under the doctrine of res judicata, the Labor Commission has denied an occupational disease claim involving the same injury that was earlier adjudicated as an industrial injury (Jensen vs. Artistic Mills, 1997).
The doctrine of res judicata (meaning the case has already been adjudicated and a judgment on the merits issued) in Utah has two branches: claim preclusion and issue preclusion. Claim preclusion means that a claim must involve the same parties and also the same cause of action, and it precludes the re-litigation of all issues that could have been litigated the first time as well as those that actually were litigated. Issue preclusion deals with cases that arose from a different cause of action, but involve facts or issues brought up again in the second suit when they were already fully litigated in the first suit. In this case, the ALJ ruled, the same injury and parties were involved, and a final judgment was issued by the Court of Appeals (and by the Supreme Court, when it denied certiorari). The claim failed in the previous proceedings due to a lack of legal causation, and the claimant, though she advanced new theories under which she might be entitled to benefits for her injury, did not raise any new issues or present any evidence which might further prove legal causation. The ALJ found that the new theories of injury could and should have been raised in the prior proceeding, and the new claims were therefore barred by the claim provision of res judicata. The ALJ dismissed these claims with prejudice.
Injuries --Claimant suffered a back injury.
Attorney(s) - Plaintiff --Timothy C. Allen; then Sandra Dredge of Dredge Lallatin, Provo; then Richard R. Burke of King, Burke & Schaap
Attorney(s) - Defense --For WCF: Elliot K. Morris; for Liberty Mutual: Michael E. Dyer of Blackburn & Stoll; for American Manufacturers Mutual: Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Facts/Contentions --Claimant originally stated that she was injured while lifting a baby out of an isolet to hand it to its mother. An ALJ issued an order awarding workers’ compensation benefits, and respondents filed a motion for review. The Labor Commission reversed the ALJ’s findings and denied workers’ compensation benefits for the accident; claimant appealed to the Utah Court of Appeals, which affirmed the Commission’s order denying the claim for lack of legal causation. Claimant filed an petition for a writ of certiorari with the Utah supreme Court, which denied the petition. Claimant then filed two new applications for a hearing, seeking benefits for the same injury under the Occupational Disease Act or, alternatively, under the cumulative trauma doctrine of the Workers’ Compensation Act, and employer/insurers moved to dismiss these claims on grounds of res judicata (see above order).

WORK INJURIES
Case Type --WA, SF; Work-related injury, work-related fall
Case Name --Debra Barbee vs. McKay Dee Hospital/IHC (self-insured); and Superior Care Pharmacy and/or R S K Company
Case Number --2000486, 2000500
Court/Judge --Hann
Verdict/Settlement --Order, 4/03
Amount --The ALJ accepted the medical panel’s opinion and found that claimant failed to prove a medical causal link existed between her current back problems and her work injuries. The ALJ therefore dismissed these claims with prejudice.
Injuries --Claimant suffered lumbar spinal injuries. An MRI taken after the oxygen concentrator incident revealed degenerative disc disease at L4/5 with a mild posterior central somewhat-broad-based disc herniation which deformed the ventral thecal sac but showed no obvious nerve root involvement. Later medical providers found some possible radiculopathy, and claimant underwent several lumbar steroid epidural injections, as well as more physical therapy. She eventually underwent a bilateral L4/5 microdiscectomy to resolve a right disc herniation abutting the exiting L5 nerve roots bilaterally.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --For IHC: Michael E. Dyer of Blackburn & Stoll; for Superior/R S K: Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel. Employers/carriers objected to the first panel’s findings because the chair of the first medical panel relied largely on a 9-page written statement from claimant. The ALJ issued an order rejecting this panel’s report and sent the case to a new medical panel chaired by Dr. Edward B. Holmes.
Facts/Contentions --Claimant was originally injured while working for IHC at McKay Dee Hospital, when she started to sit down and her supervisor, who did not see her beginning to sit, pulled the chair away, causing claimant to fall on her tailbone. Claimant was five and a half months pregnant at the time of this injury; therefore no diagnostics could be done, and she was referred to limited physical therapy. Claimant continued to have pains in her back, but kept them under control with over-the-counter medications. She moved to St. George and went to work for Superior Care a year after her original injury. Four months later, she said, she was loading 65-pound oxygen concentrators into her car for delivery to homes and nursing homes. This activity required her to squat down, pick up the box holding the concentrator by gripping grooves in the side, stand up holding the box against her body, and reach forward to push the box away from her into the back seat of her car. She loaded three concentrators at the end of her workday and then went home. On arriving there, she said, she felt her back was strained, but did not seek medical care. She described her pain at the time as 1 or 2 on a scale of 10. Later that evening, however, she was moving a child’s portable playpen weighing about 5 or 10 pounds, which was folded flat for carrying by its handle. As she went through a doorway, claimant said, she twisted a bit to get herself and the playpen through the doorway, and turned back around to carry the play pen in front of her. As she was doing this, she sneezed, and felt immediate severe pain radiating down her legs. She dropped the playpen, and her mother picked it up and took it into the house. She described the pain as 8 or 9 on a scale of 10. The next morning, while driving from St. George to Richfield with another employee to deliver the oxygen concentrators, she had to stop in Cedar City because of intense pain. Claimant sought treatment from a chiropractor in Cedar City who was known to claimant’s co-worker, and after the chiropractor performed a mild manipulation on her back, claimant was able to continue the trip, although the other employee had to drive. Claimant sought treatment three days later.
IHC contended that claimant suffered a new interim injury to her back while loading the oxygen concentrators into her car; they therefore denied liability on grounds that claimant’s back problems were caused by the new injury.
Superior Care/R S K contended that claimant’s back problems were caused by the sneezing incident while she was carrying the playpen, and were therefore not industrially related at all.
The medical panel chaired by Dr. Holmes opined that claimant recovered fully from the injury caused by the fall at IHC, and it did not contribute to her later problems. The panel felt claimant’s later injury was most likely caused by the sneezing incident and not by the strain of lifting the oxygen concentrators into her car, as claimant did not experience severe pain or lower extremity radiation until after she sneezed.

DISCRIMINATION
Case Type --DS; Discrimination claim
Case Name --(Name of case withheld)
Case Number --8020503
Court/Judge --Poelman
Verdict/Settlement --Order, 4/03
Amount --The ALJ granted employer’s motion for summary judgment and dismissed this claim with prejudice.
Attorney(s) - Plaintiff --D. Bruce Oliver
Attorney(s) - Defense --Desiree D. Peri
Facts/Contentions --Claimant filed a complaint on grounds that employer unlawfully engaged in an act of retaliation against him.
Employer denied the allegation, and the Commission’s Anti-Discrimination Division issued findings that there was no reason to believe claimant’s allegation was true. Claimant then filed this request for a hearing.
A pre-hearing conference was held before the Adjudication Division at which neither claimant nor his attorney appeared, though they received notice that the conference had been scheduled. Employer moved for summary judgment after the conference.

ORDER ON REVIEW
Case Type --DB; Death benefits claim
Case Name --Dakota Cameron, dependent child of Cody Mair, vs. Bonneville Asphalt and Liberty Mutual Insurance Company
Case Number --010782
Court/Judge --This order was issued by Labor Commissioner R. Le Ellertson.
Verdict/Settlement --Order on review, 4/03
Amount --The Labor Commissioner upheld the ALJ’s findings and denied Bonneville’s motion for review.
Injuries --Cody Mair died from work injuries.
Attorney(s) - Plaintiff --Bruce J. Wilson, formerly of Provo, now of Colorado Springs, Colorado
Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Facts/Contentions --Two years and ten months after Cody Mair died of injuries he suffered while working at Bonneville, Susan Cameron, mother of Mair’s son Dakota Cameron, filed a claim for death benefits on behalf of Dakota, who was just over two years old when his father died. Bonneville contended that Dakota’s claim was untimely because it was not filed within one year after Mair’s death as required by the Utah Workers’ Compensation Act. ALJ Eblen rejected that argument and ruled instead that the one-year limitation period was tolled during Dakota’s minority, and the application for death benefits was therefore timely. Bonneville requested review.
Commissioner Ellertson noted that a different section of the Act tolls the one-year filing period under some circumstances. For instance, “if a person entitled to bring an action. . . is at the time of the cause of action accrued, either under the age of majority or mentally incompetent and without a legal guardian, the time of the disability is not a part of the time limited for the commencement of the action.” [Section 34A-2-417(3), Utah Workers’ Compensation Act] Commissioner Ellertson also noted that the Utah Court of Appeals has ruled that this section of the Act supersedes the part of the statute cited by Bonneville and tolls the time limit for filing within a claimant’s minority, the Commissioner therefore determined that the application for death benefits filed on behalf of Dakota was indeed timely.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Jill Curtis vs. Red Cliffs Regional and/or Workers’ Compensation Fund
Case Number --2002345
Court/Judge --Poelman
Verdict/Settlement --Order, 4/03
Amount --The ALJ found that claimant filed to prove her claim of permanent and total disability caused by her work-related injury. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered an injury to her right arm which left her with a 6% related whole-person impairment. She underwent surgery to repair a right arm ulnar nerve and interior transposition.
Attorney(s) - Plaintiff --Aaron J. Prisbrey, St. George
Attorney(s) - Defense --Stephen H. Urquhart of Thompson Awerkamp, St. George
Expert Witness(es) - Plaintiff --Dr. Scott Parry--treating physician
Damages --Claimant’s employer accepted liability for her industrial injury and paid her temporary total disability benefits’ they also paid her for her 6% related whole-person impairment.
Facts/Contentions --Claimant worked for employer as a patient assistant. She twisted her arm while assisting a patient who fell against claimant’s arm, trapping it between the bed-rail and the mattress. Claimant continued working that day, but later noticed difficulty in using her right hand and sought emergency medical treatment. She terminated her employment later for unrelated reasons.
Claimant did not seek other employment after terminating with this employer, but instead chose to seek further employment through the Utah Department of Rehabilitation. She was enrolled in a course of study at the American Institute of Medical and Dental Technology, and sought to take the examination to become a Certified Physician’s Assistant. She claimed she sought work at various convenience stores, etc. which were located within walking distance of her home, but did not receive any replies. She therefore claimed permanent and total disability stemming from her industrial injury.
Employer/carrier disputed the claim of permanent and total disability and noted that most physicians’ assistants are not required to be certified. Employer/carrier contended that there is a good job market for physicians’ assistants in the area where claimant lives. Other than her unsupported testimony and that of one witness (who was not an expert on job availability), claimant did not present any other evidence related to the unavailability of work in her area during the period following her attainment of maximum medical stability.

REPETITIVE STRESS INJURY
Case Type --WA, SI; Work-related repetitive stress injury claim
Case Name --(Name of case withheld)
Case Number --2002417
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 5/03
Amount --The ALJ found claimant failed to prove medical causation. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered upper left arm pain and was diagnosed with bilateral carpal tunnel syndrome, bilateral cubital tunnel syndrome, and left lateral epicondylitis.
Attorney(s) - Plaintiff --David Smith
Attorney(s) - Defense --Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Expert Witness(es) - Plaintiff --Dr. J. Eric Vanderhooft--treating physician
Facts/Contentions --Claimant stated that his left arm problems were caused by his work for employer as a front-end loader-operator over a period of six years. He originally stated that he was injured in an industrial accident on 2/5/02, but at the hearing on his claim, he withdrew this statement and contended instead that his injuries resulted from repetitive trauma occurring over a period of two and a half years. Claimant also withdrew his request for temporary total and permanent partial disability compensation at his hearing. Claimant, however, contended at the hearing that during the period that caused his repetitive stress injury, he worked 12 hours a day, making 35 or more trips from the pit to a rock-crusher, constantly turning the steering wheel of his front-end loader, which required him to maintain a constant and sustained grip on the steering wheel with his left hand.
Employer/carrier argued that claimant failed to provide them with timely notice of his industrial injuries, though claimant stated that he told his supervisor several times that he was having problems with his left arm during the period he claimed caused his symptoms. Employer/carrier denied that claimant’s left arm symptoms were caused by his work activities. Claimant’s treating physician failed to note anywhere that claimant’s employment caused his left arm problems.

DISCRIMINATION CLAIM
Case Type --SD; Discrimination claim (ADA)
Case Name --Kevin Armstrong vs. American Nutrition, Incorporated
Case Number --802053
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 5/03
Amount --The ALJ found claimant failed to meet his burden of proof and also failed to raise any genuine issue of material fact; the ALJ therefore granted employer’s motion for summary judgment dismissed this claim with prejudice.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --R. Scott Rawlings
Facts/Contentions --Claimant contended that employer denied him his former job as a truck driver after he returned from having surgery on his neck. He claimed employer discriminated against him because of his perceived disability after the neck surgery. Claimant also argued that employer discriminated against him in denying him overtime; he claimed this discrimination occurred because he is a Native American.
Employer stated that before claimant had his neck surgery, he brought in a list of restrictions from his doctor which prevented him from carrying out the duties of a truck driver. However, the restrictions allowed claimant to operate forklifts, and employer transferred him back to work as a forklift operator--the position for which he was originally hired before he became a truck driver. While claimant was off work for surgery, the company needed a truck driver, so they hired one in claimant’s absence. When claimant returned to work, employer said, his medical restrictions again prevented him from working as a truck driver, and by the time claimant was released to return to work with no restrictions, the company had no opening for a truck driver. However, employer said, claimant continued to work as a forklift operator. Employer denied that it considered claimant disabled. In response to the overtime-related claim, employer stated that it did not assign claimant overtime work because of his unavailability at the end of regular shifts and his family commitments. Claimant did not dispute employer’s testimony on either of these issues.
The ALJ found no evidence was presented by either side to show that claimant qualified as a disabled person under the Americans with Disabilities Act (ADA).

DISCRIMINATION CLAIM
Case Type --SD; Discrimination claim
Case Name --(Name of case withheld)
Case Number --8010158
Court/Judge --Poelman
Verdict/Settlement --Order, 5/03
Amount --The ALJ found claimant failed to meet his burden of proof and also failed to raise any genuine issue of material fact; the ALJ therefore granted employer’s motion for summary judgment and dismissed this claim with prejudice.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Nathan R. Hyde, Boise, Idaho
Facts/Contentions --Claimant contended that his employer discriminated against him because of his national origin (Hispanic) when it accused him of shoplifting and dismissed him from his position.
Employer moved for summary judgment and produced evidence to show that claimant signed a statement on the date of his dismissal admitting that he took pinenuts and doughnuts from employer’s store without permission. Claimant was arrested for shoplifting in connection with this incident. Claimant did not contest employer’s evidence.

FALL
Case Type --WA, SF; Work-related fall
Case Name --Justin Coe vs. Artistic Hardwood Flooring and/or Workers’ Compensation Fund
Case Number --2001451
Court/Judge --Hann
Verdict/Settlement --Order, 5/03
Amount --The ALJ ordered employer/carrier to pay claimant temporary total disability compensation at the rate of $388 per week beginning 4/24/02 (the date of Dr. Chung’s last note stating that claimant was not medically stable). Accrued payments are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney; payments must continue until claimant attains medical stability.
Injuries --Claimant suffered left knee injuries, including a deep bone bruise of the lateral tibial plateau, a partial ACL tear and fluid behind the capsule medially. He underwent a scope, debridement and peroneal neurolysis. He had two pre-existing knee injuries on the left side, both of which occurred years earlier. Dr. Chung gave claimant a 7% whole-person impairment rating for his knee injuries, with 50% of that impairment pre-existing. Dr. Beck recommended a complete knee replacement in the next 5 to 10 years, but noted that claimant was a marginal candidate for surgery because of his concerns that the surgery might aggravate the peroneal nerve. Dr. Chung found that claimant is not yet medically stable. Claimant was eventually diagnosed with complex regional pain syndrome type one.
Attorney(s) - Plaintiff --David K. Smith
Attorney(s) - Defense --Lori Hansen
Expert Witness(es) - Plaintiff --Dr. Beck--treating physician
Expert Witness(es) - Defense --Dr. Chung--independent medical evaluation physician
Facts/Contentions --Claimant stated that he was injured when he stumbled while going down a stairway where the handrail had not yet been installed. He landed on his left leg, and his knee collapsed when he hit the ground. His permanent work restrictions prevented him from returning to his job as a hardwood floor installer for employer, and he enrolled at Salt Lake Community College for re-training which would allow him to seek more sedentary employment elsewhere.
Employer/carrier contended that claimant’s knee problems were caused by his pre-existing injuries; employer/carrier also contended that claimant was medically stable.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Darwon Knight vs. Bud Lee & Sons and/or Workers’ Compensation Fund
Case Number --2001165
Court/Judge --Hann
Verdict/Settlement --Order, 5/03
Amount --The ALJ found employer/carrier owed claimant $2,492.16 for his permanent impairment; the ALJ therefore ordered employer/carrier to pay claimant this amount less $2,244 previously paid, plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney,
Injuries --Claimant suffered an injury to his right hand and wrist.
Attorney(s) - Plaintiff --Aaron J. Prisbrey, St. George
Attorney(s) - Defense --Elliot K. Morris
Expert Witness(es) -- Because of conflicting medical issues, the parties agreed to waive a hearing and refer this case directly to a medical panel chaired by Dr. Scott Smith.
Facts/Contentions --Claimant stated that he injured his hand and wrist in the course and scope of his duties for his employer.
Employer/carrier admitted that the accident occurred, but disputed that it owed claimant any further payments for permanent impairment on grounds that it had already paid a compromise of two conflicting ratings.
The medical panel gave claimant a 6% related whole-person impairment rating for his industrial injuries.

FALL
Case Type --WA, SF; Work-related fall
Case Name --Stacy Owens vs. One Man Band; A-Plus Benefits and/or Liberty Mutual Insurance Company
Case Number --2002773
Court/Judge --Hann
Verdict/Settlement --Order, 5/03
Amount --The ALJ found that claimant’s injuries were caused by her industrial accident; the ALJ therefore ordered employer/carrier to pay claimant accrued temporary total disability benefits of $5,306.38 and permanent partial disability benefits of $6,002.88. Claimant may seek a lump sum payment plus interest for the permanent partial disability benefits. Employer/carrier must also pay claimant’s related medical expenses. Accrued temporary total disability benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Permanent partial disability benefits are due and payable less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney.
Injuries --Claimant suffered injuries to her left shoulder, left arm, and left hip, as well as a disc herniation at C5/6 and a disc protrusion at C6/7. Claimant underwent surgery to decompress the herniated disc from the nerve root. The C6/7 disc was removed and replaced with an iliac crest bone graft supported with a plate. Dr. Grange gave claimant a 13% related whole-person impairment rating for her industrial injuries.
Attorney(s) - Plaintiff --Sandra N. Dredge of Dredge Lallatin, Provo
Attorney(s) - Defense --Dori K. Petersen of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Alan Colledge; Dr. David Gardner
Expert Witness(es) - Defense --Dr. Tim S. Grange--independent medical evaluation physician
Damages --Employer/carrier paid claimant $1,423.97 in medical benefits.
Facts/Contentions --Claimant stated that she was injured in a fall after she slipped in water on the floor while she was working as a cook. She attempted to break her fall by putting her hands behind her, but her arm gave way and she landed on her left hip and struck her head. She said she was unable to get up for about 30 minutes after falling. Some time after she fell at work, claimant was involved in a minor motor vehicle accident; however, all the physicians who saw her (including employer/carrier’s IME physician) opined that the motor vehicle accident did not worsen her injuries, which were caused by the industrial fall.
Employer/carrier admitted that the fall occurred, but denied liability for any medical or other compensation, contending that claimant failed to follow up on her medical care as she was instructed to do. Employer/carrier also argued that claimant’s injuries were pre-existing.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Joseph E. Pavich Jr. vs. Electro Arts and Workers’ Compensation Fund
Case Number --97566
Court/Judge --Eblen
Verdict/Settlement --Order, 5/03
Amount --The ALJ concluded that the intrathecal pump should be tried as a measure to control claimant’s pain; the ALJ therefore ordered employer/carrier to pay for a trial period of use, to be determined by Dr. Webster, using known effective drugs, to see if the pump is beneficial to claimant before the device is permanently implanted.
Injuries --Claimant suffered an injury to his thoracic spine and underwent a discectomy at T7/8. Claimant has qualified for Social Security disability benefits; he had several pre-existing industrial injuries to his shoulder and low back and underwent several surgeries to repair these injuries.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Floyd Holm
Expert Witness(es) --Because of conflicting medical issues, the parties agreed to waive a hearing and refer this case directly to a medical panel chaired by Dr. Edward Holmes.
Facts/Contentions --Claimant stated that he was injured while bending large-diameter wire and installing it in an electrical gutter at a construction site. After his surgery, he said, he attempted to return to work, but experienced increased pain and was unable to continue.
The parties reached a settlement agreement whereby employer/carrier paid claimant for a 10% related whole-person impairment, and in a previous order the ALJ awarded claimant additional temporary total disability benefits. Four years after his original injury, claimant was involved in a motor vehicle accident which aggravated his spinal problems. Following this incident, the parties disagreed over the question of whether claimant was a good candidate for an intrathecal medication pump to control his pain.
The medical panel found that the intrathecal pump would be a reasonable last-resort treatment for claimant’s symptoms, but recommended that an untested drug should not be used and the pump should be installed only after a successful intrathecal infusion trial with pain relievers known to be effective. Dr. Webster had recommended an experimental drug.

WORK INJURIES
Case Type --WA; Work-related injuries
Case Name --Randy Rael vs. J & S Mechanical Constructors and American Protection Insurance and Reliance Insurance
Case Number --2000700, 2000701
Court/Judge --Eblen
Verdict/Settlement --Order, 5/03
Amount --The ALJ found that under Utah law, the burden of furnishing proof of permanent and total disability rests on an injured employee, who must show that he or she cannot perform other work reasonably available. Since claimant failed to seek other available work, the ALJ found he failed to prove he was permanently and totally disabled. The ALJ found that the treatment claimant is receiving for the pain and disability caused by the second accident is medically necessary; the ALJ therefore ordered employer/American to continue to pay these medical expenses for treatment of claimant’s lumbar spine injuries. Employer/American must pay claimant for his 20% related whole-person impairment, of which 12% should already have been paid under the interim order, leaving an accrued total of $8,112 due in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. If employer/Reliance have not already paid claimant for his 7% related whole-person impairment from the first accident, the ALJ ordered them to do so; the award is due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. The claim for permanent total disability benefits was denied.
Injuries --Claimant suffered a head injury and a low back injury in two separate accidents at work. He claimed permanent and total disability. He was diagnosed with a grade II-III disc herniation at the right posterolateral direction at the plain of the L5/S1 disc, which appeared to track upward into the left L5 sub-articular recess and then appeared to impinge upon the left L5 nerve root, as well as also displacing part of the descending left S1 nerve root. Claimant also had mild grade I bulging of the L4/5 disc. He underwent a hemilaminectomy at L5 on the left, a foraminotomy at the left L5 nerve root, an excision of the disc at L5/S1 on the left, and an excision of the disc at L4/5 on the left. He later underwent an anterior interbody fusion at L4/5 and L5/S1 with threaded Ray fusion cages and a posterior fusion at L4/5 and L5/S1 with pedicle screws. Claimant continues to experience severe pain in his back and legs, and states that he simply cannot work.
Attorney(s) - Plaintiff --Marsha S. Atkin of Atkin & Associates
Attorney(s) - Defense --For Reliance: Theodore E. Kanell of Plant, Wallace, Christensen & Kanell; for American: Mark A. Riekhof of Dunn & Dunn
Expert Witness(es) - Plaintiff --Because of conflicting medical issues, this case was referred to a medical panel chaired by Dr. Edward Holmes.
Facts/Contentions --Claimant worked for employer installing sewer and water lines. He said he was first injured at work when he was struck in the back of the head by a forklift which was carrying a dumpster. He said he was injured the second time while carrying heavy rolls of plastic.
Employer/carrier disputed claimant’s contention that he could not do any type of gainful work.
The medical panel found claimant has a 20% whole-person impairment, all related to the second industrial injury. He earlier received an undisputed 7% whole-person impairment rating for his injuries from the first industrial accident. Benefits for the 7% impairment were paid by his employer/carrier.

WORK INJURY
Case Type --WA; work-related injury
Case Name --Jerry Randall vs. Geneva Steel Company; Frontier Insurance Company (in receivership); and Uninsured Employers’ Fund
Case Number --99746
Court/Judge --Eblen
Verdict/Settlement --Order, 5/03
Amount --The ALJ ordered Geneva/Frontier, through the UEF, to pay claimant accrued temporary total disability compensation of $11,160, as well as accrued permanent partial disability benefits of $13,540.80. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and aid directly to claimant’s attorney. Geneva/Frontier, through the UEF, must also continue to pay claimant’s related medical expenses.
Injuries --Claimant suffered spinal injuries and underwent two surgeries. He was diagnosed with post-surgical scarring at L4/5 and L5/S1. He later underwent a fusion surgery.
Attorney(s) - Plaintiff --T. Jeffery Cottle, Orem
Attorney(s) - Defense --For Geneva/Frontier: Henry K. Chai II of Blackburn & Stoll; for UEF: Edwin C. Barnes of Clyde, Snow, Sessions & Swenson
Expert Witness(es) --This matter was referred to a medical panel chaired by Dr. Charles Smith.
Facts/Contentions --Claimant was injured twice at work. The medical panel found his fusion surgery was necessary to treat his back injuries; the panel gave claimant a 14% related whole-person impairment rating from the second injury.

WORK INJURIES
Case Type --WA; Work-related injuries
Case Name --Scott Roy vs. IASIS Health Care/Davis Hospital and Kemper Insurance Company
Case Number --2000680
Court/Judge --Eblen
Verdict/Settlement --Order on remand, 5/03
Amount --Since the medical panel found no medical causal connection between claimant’s accident and his injury, the ALJ denied the claim with prejudice.
Injuries --Claimant suffered a cervical spinal injury and underwent surgery.
Attorney(s) - Plaintiff --W. Scott Lythgoe, Ogden
Attorney(s) - Defense --Mark A. Riekhof of Dunn & Dunn
Expert Witness(es) --This case was referred to a medical panel consisting of Dr. Madison Thomas--neurologist; and Dr. Glenn Momberger--orthopedic surgeon.
Facts/Contentions --Claimant said he was working as a registered nurse at Davis Hospital when he heard a thud from ICU Room 9. He went into the room and discovered that an ambulance crew had dropped a patient between a gurney and a bed. Claimant lifted the six-foot, 219-pound patient off the floor and onto the gurney and continued to work, finishing his shift. The following weekend he rented a floor sander, but could not use it because of pain in his neck. He said he awoke in excruciating pain a week later after sleeping on a couch. Surgery revealed a multifragmented disc herniation at C6/7.
Employer/carrier disputed whether claimant’s herniation was caused by the industrial incident. The ALJ issued an order awarding benefits to claimant, and a later amended order corrected the amount of attorney’s fees. Employer/carrier requested a stay of the order and filed a motion for review. The Labor Commissioner remanded the case to the ALJ for referral to a medical panel, which was asked to determine whether the surgery was medically necessary to treat claimant’s industrial injury.
The medical panel concluded that there was no causal link between claimant’s industrial injury and the condition for which he received surgery.

REPETITIVE STRESS INJURY
Case Type --WA, SI, Work-related repetitive stress injury claim
Case Name --Lori Adkins vs. Beaver City and/or Workers’ Compensation Fund
Case Number --2001892
Court/Judge --Hann
Verdict/Settlement --Order, 6/03
Amount --The ALJ accepted the medical panel’s findings and ruled that claimant’s injury was non-industrially caused. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered bilateral carpal tunnel syndrome.
Attorney(s) - Plaintiff --Traci A. Timmerman of Bertch Robson
Attorney(s) - Defense --Lori Hansen
Expert Witness(es) --Because of conflicting medical testimony, the parties agreed to waive a hearing and refer this case directly to a medical panel consisting of Joseph Jarvis, MD--chair; and Evan Black, MD--neurologist.
Facts/Contentions --Claimant contended that her carpal tunnel syndrome was caused by her work activities at Beaver Valley Home Health, including lifting various items and pumping up a blood pressure cuff. Her physician opined that there was a medical causal relationship between these activities and claimant’s symptoms.
Employer/carrier and the independent medical evaluation physician felt claimant’s carpal tunnel syndrome was caused by non-industrial factors such as gender, age, genetics and anthropometric factors, including body mass index and wrist ratio.
The medical panel found that claimant’s condition was caused by non-industrial factors.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --Veldon E. Foil vs. Pepsi Bottling Group and/or Transcontinental Insurance
Case Number --200263
Court/Judge --Hann
Verdict/Settlement --Prelim order, 6/03
Amount --The ALJ issued a preliminary determination of permanent total disability and ordered employer/carrier to pay claimant subsistence benefits of $308 per week beginning 4/4/00 and continuing until a final finding of permanent total disability or other finding is issued by the Commission. Accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Ongoing attorney’s fees of 10% of the continuing weekly benefit payments are to be deducted from claimant’s weekly benefit payments and paid directly to claimant’s attorney until a total of $10,352 is reached, when deductions for attorney’s fees shall cease. Employer/carrier must also pay all claimant’s related medical expenses.
Pursuant to Utah law, the ALJ must hold a second hearing following this preliminary determination of permanent total disability to determine whether claimant can be re-employed or rehabilitated. If not, she will issue a final finding of permanent total disability and award benefits accordingly.
Injuries --Claimant suffered subacute to chronic lumbar discogenic pain with radiculopathy in the right thigh; he underwent implantation of an intrathecal morphine pump and has not worked since his light-duty work ended. He has qualified for Social Security disability benefits, and his doctors agree that he is not a good candidate for surgery.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Expert Witness(es) - Plaintiff --Dr. Bowen; Dr. Webster; Dr. Hood
Facts/Contentions --Claimant delivered Pepsi products to stores. This job required him to lift cases of soda weighing 15 to 20 pounds, with frequent bending, stooping and stretching. He was walking on wooden pallets while carrying four 12-packs of soda when a board cracked and his foot slipped between two of the boards. Claimant fell forward, twisting to the side as he did so; he struck his head, felt a pop, and felt extreme pain in his low back. After resting for about half an hour, claimant reported the injury to his boss and was told to finish the rest of his route (six more stores). He did so, although he was in pain, and the next morning experienced difficulty moving. He reported to the industrial clinic that morning. He returned to light-duty work for three months, but could not work any more after his light-duty work ended. He cannot put on his own shoes or socks (his wife helps with this) and cannot vacuum, sweep or wash dishes. He can only sleep for three hours at a time because of leg and back spasms. He uses a walker because his leg began giving out, and can no longer engage in the sports activities he enjoyed before he was injured. He has looked for other work, but has not been hired.
Employer/carrier denied that claimant’s work injury was the cause of his current condition.

WORK INJURY
Case Type --WA; Work-related injury claim
Case Name --(Name of case withheld)
Case Number --99024
Court/Judge --George
Verdict/Settlement --Order, 6/03
Amount --The ALJ found claimant failed to prove by a preponderance of credible evidence that he suffered an industrial injury; the ALJ therefore dismissed his claim with prejudice.
Injuries --Claimant suffered a back injury.
Attorney(s) - Plaintiff --James R. Black
Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Facts/Contentions --Claimant stated that he was injured while working for employer as a truck driver, when he was lowering a trailer containing 20,000 pounds of frozen sausage onto a tractor with a hand crank. He said that the crank stuck, and when he brought his weight to bear on it, he felt a pop and a sharp pain in his lower back. He said the pain was so bad he had to sit down in the truck for twenty minutes. He said he mentioned the injury to employer’s supervisor that day through the truck’s Qualcom, and the supervisor called him back to suggest that he take it easy that afternoon. Claimant admitted that he did not mention in either of these conversations that his pain was the result of an industrial accident. There was no Qualcom record of the alleged report. Claimant drove without the trailer for four days and then disconnected it without a problem on his return to the yard. He said he marked in his log book that he reported the injury to somebody in Salt Lake City, but nothing in the records bore out this claim.
Employer/carrier contended that claimant never reported suffering an industrial injury. They also produced medical records showing claimant had a pre-existing low back condition for which he underwent laminectomy and discectomy surgeries before taking the truck-driving job; however, he did not mention this condition in his job interview with employer/carrier. Nothing in the records supported claimant’s contention that there was something wrong with the trailer’s crank system. Claimant did not mention an industrial accident to any of his medical providers.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --Mark Leavitt vs. Southern Utah University and Workers’ Compensation Fund
Case Number --2001704
Court/Judge --Eblen
Verdict/Settlement --Order, 6/03
Amount --The ALJ declined to accept the medical panel’s report, finding that the medical record indicated claimant’s right lower extremity pain, numbness and sensory changes predated his industrial injury, rather than being caused by the industrial injury as the panel opined. The ALJ found the medical record indicated that claimant’s symptoms were caused by his prior injury. The ALJ found the medical record did not support the medical panel’s conclusion that claimant has muscle atrophy in his right thigh. The ALJ therefore ordered employer/carrier to pay claimant’s medical expenses related to this injury, but not to pay for any medical expenses incurred after 5/24/01, including the second set of epidural injections, the recommended TENS unit, recommended Provost Spinal Cord Stimulator, prescription pain medications, possible physical therapy and/or bracing. The ALJ dismissed the claims for permanent partial disability benefits, temporary partial disability benefits, and medicaal benefits for aggravation of mid-back pain with prejudice.
Injuries --Claimant suffered a low back injury which he claimed caused radiculopathy in the lower right extremity with numbness and sensory changes. The medical panel awarded him a 2% related permanent impairment rating for the radiculopathy. The panel also concluded that claimant has muscle atrophy in his right thigh. Claimant contended that his industrial accident aggravated his mid-back pain.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Elliot K. Morris
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel which was chaired by Dr. Scott M. Smith--orthopedic surgeon.
Damages --Employer/carrier paid some medical expenses, but declined to pay further benefits.
Facts/Contentions --Claimant stated that he was injured when he slipped and fell on ice, landing flat on his back, while entering a building on campus where he was about to teach a math class. He said he got up and continued to the classroom, where he taught the class. After class, he went to the Student Health Center for evaluation, and was referred to WorkMed.
Employer/carrier admitted that the fall occurred, but claimed that it merely exacerbated a pre-existing condition. Claimant had two previous back surgeries following a prior injury.
The medical panel found that the epidural injections, recommended TENS unit, recommended Provost Spinal Cord Stimulator, prescription pain medications, possible physical therapy and/or bracing were medically necessary to treat claimant’s industrial injury. The panel also found claimant suffered muscle atrophy in his right thigh.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --Kathy J. Bolton vs. Printing Express and/or Workers’ Compensation Fund
Case Number --2001243
Court/Judge --Hann
Verdict/Settlement --Order, 6/03
Amount --The ALJ accepted the medical panel’s report and ordered employer/carrier to pay claimant $2,264 in accrued temporary total disability compensation and $2,077.92 in accrued permanent partial disability compensation for her 2% related whole-person permanent impairment. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses, with the exception of the bills for the treatment of claimant’s left hip pain and her chiropractic treatment.
Injuries --Claimant suffered injuries to her right knee, left hand and left ankle; she currently has pain in her knees, back and wrist.
Attorney(s) - Plaintiff --Loren M. Lambert of Arrow Legal Solutions
Attorney(s) - Defense --Eugene Miller Jr.
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel chaired by Dr. Alvin J. Wirthlin.
Facts/Contentions --Claimant stepped into a hole in employer’s parking lot with her left foot as she was getting out of her car; she landed on her hands and knees. She called out for help and was assisted into the building, where she worked sitting down until she got a call and had to leave for the hospital, as her husband was dying. He died later that day, and because of his death, claimant did not have time to seek care for the worsening pain in her knees and wrist. She sought medical care the following week.
Employer/carrier contended that claimant’s industrial fall temporarily aggravated prior injuries from previous falls. Claimant had also suffered a stroke and still had some symptoms from it, and she experienced pain from several motor vehicle accidents, though she said that pain had resolved. Claimant has significant degenerative arthritis in both knees. Treating physicians and independent medical evaluation physicians disagreed about the extent of the damage caused by the fall and the amount of pre-existing injury.
The medical panel found that of claimant’s current medical problems, the only condition related to the industrial fall was a temporary aggravation of the pre-existing degenerative arthritis, which resolved 8 weeks after the injury. The panel found the medical treatment claimant received following her industrial injury was medically necessitated by her industrial fall, with the exception of the treatment for pain in the left hip and more than one month of chiropractic treatment. The panel awarded claimant a 2% related permanent whole-person impairment rating as a result of the industrial fall. The panel did not feel that any future medical treatment will be necessary to care for claimant’s industrial injury.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Marie D. Melendres vs. J. T. Thorpe and/or Lumbermen’s Mutual
Case Number --2002390
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 6/03
Amount --The ALJ found that since claimant did not miss any work because of her industrial injury, she was not entitled to temporary total disability benefits; the ALJ therefore dismissed this claim with prejudice. The ALJ did, however, order employer/carrier to pay claimant’s related medical expenses, but noted that no further medical benefits were due, since employer/carrier had already paid most of them.
Injuries --Claimant suffered a left shoulder strain.
Attorney(s) - Plaintiff --J. Kent Holland of Anderson & Holland
Attorney(s) - Defense --Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Damages --Employer/carrier paid most of claimant’s medical bills for treatment of her industrial injury. Claimant’s medical insurance paid the rest of her medical expenses.
Facts/Contentions --Claimant was assigned to work for her employer at Kennecott, chipping old brick from copper boilers with a 5-pound, 2-foot-long power chisel. She said the one-and-a-half-foot blade of the chisel became stuck between two bricks, and she felt pain in her shoulder when she yanked it with her left hand to try to get it loose. She reported the incident to her supervisor and sought medical treatment shortly thereafter.
Employer/carrier admitted that the incident occurred, but claimed the shoulder injury was pre-existing. Claimant admitted that she had prior problems with her neck and left shoulder, but contended that this was a new injury. Claimant returned to light-duty work for employer the day after her industrial accident, and did not miss any work because of it.

ASSAULT
Case Type --W, BT; Work-related assault
Case Name --(Name of case withheld)
Case Number --2002467
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 6/03
Amount --The ALJ found that a preponderance of the evidence indicated that claimant was involved in the incident with the phlebotomist against her will and was not engaged in consensual horseplay when she was injured. Her injury was therefore industrial. The ALJ ordered employer/carrier to pay claimant’s related medical expenses and also to pay an attorney’s fee to claimant’s attorney; the fee shall be a percentage of the medical expenses paid on claimant’s behalf, but shall be over and above these expenses. Future medical expenses shall be considered as they arise for determination as to whether they are medically necessitated by claimant’s industrial injury.
Injuries --Claimant suffered a left shoulder injury of indeterminate nature. She sought payment for recommended additional physical therapy, another MRI, an arthrogram and surgery if necessary.
Attorney(s) - Plaintiff --Marsha S. Atkin of Atkin & Associates
Attorney(s) - Defense --Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Facts/Contentions --Claimant worked as one of two admitting clerks on the evening shift in employer health care facility’s emergency room. Claimant stated that on the evening she was injured, she stood up from her desk and turned 180 degrees in order to reach the file cabinet behind her. She said that as she did this, a phlebotomist came up behind her, grabbed her upper arms, and dragged her 15 feet down an adjacent hall to a drug screening room, where he pushed her down onto a counter top. Claimant said she told the phlebotomist to stop and called out to the other admitting clerk for help. Once in the drug screening room, claimant said, she pulled away from the phlebotomist, who pulled her left arm very hard. Claimant said she had marks on her arms and stomach from the incident. She returned to her work station and called her mother; she also asked the other clerk why she did not help claimant when she called out, and the other clerk said she thought claimant and the phlebotomist were engaging in horseplay. Claimant’s mother called the police and an investigation ensued; claimant sought medical treatment in employer’s emergency room.
Employer/carrier contended that claimant’s injury was not industrial because it resulted from horseplay. The phlebotomist testified that he did come up behind claimant, but he said he grabbed her by the wrists and led her without force down the hall to the door of the drug screening room, where he turned her around. The phlebotomist said he thought he and claimant were having fun, though he admitted that claimant did not laugh during the incident. He said claimant did ask the other clerk why she did not help claimant.
An ER tech testified that he arrived at the hospital after the incident and found claimant at the copy machine, crying; she told the ER tech about her encounter with the phlebotomist. The ER tech recalled that claimant complained of left shoulder pain after the incident; he said she was afraid of the phlebotomist. The other admitting clerk said she could not see claimant’s work station from her desk.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Erica Collins vs. Utah Fun Dome and/or Workers’ Compensation Fund
Case Number --20011085
Court/Judge --Hann
Verdict/Settlement --Order, 6/03
Amount --The ALJ accepted the medical panel’s findings and ordered employer/carrier to pay claimant $5,676.40 in accrued temporary total disability benefits, due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses, including those for the knee surgery, the low back treatment and the chiropractic treatment.
Injuries --Claimant suffered left knee and low back injuries. She underwent knee surgery.
Attorney(s) - Plaintiff --Marsha S. Atkin of Atkin & Associates
Attorney(s) - Defense --Lori Hansen
Expert Witness(es) --The parties agreed to waive a hearing and refer this case directly to a medical panel consisting of Dr. Madison Thomas--chair; and Dr. Glenn Momberger.
Facts/Contentions --Claimant argued that her left knee and low back problems were the result of her industrial injury.
Employer/carrier admitted that the industrial accident occurred, but denied that it caused her to require any medical care after the first four months following the accident.
The medical panel found the industrial accident caused claimant’s knee injury, which in turn affected her low back. The panel awarded claimant a 2% related whole-person permanent impairment rating for her knee and a 7% whole-person permanent impairment rating for her low back, with 5% of the low back impairment caused by pre-existing conditions and 2% industrially related. The panel found the treatment for claimant’s low back and the chiropractic treatment she received, as well as the knee surgery, were reasonable and necessary as a result of the industrial injury.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --(Name of case withheld)
Case Number --99387
Court/Judge --Eblen
Verdict/Settlement --Order, 6/03
Amount --The ALJ accepted the medical panel’s findings and also found self-insured employer overpaid claimant $284.96 in temporary total disability benefits and $155.23 in temporary partial disability benefits, which entitles employer to a total offset of $440.19 against any future benefits it may be required to pay claimant. Employer must also pay all related medical expenses, but does not currently owe claimant any payments for medical expenses or other benefits.
Injuries --Claimant suffered a fractured left elbow and a radial head fracture with persistent pain; she also experienced neck and back pain and depression, and has qualified for Social Security disability benefits.
Attorney(s) - Plaintiff --K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense --Henry K. Chai II of Blackburn & Stoll
Expert Witness(es) --The parties agreed to waive a hearing and refer this case directly to a medical panel consisting of Dr. Alvin Wirthlin--chair; Dr. Glenn Momberger--orthopedic surgeon; and Dr. Robert H. Burgoyne--psychiatrist.
Damages --Self-insured employer paid $5,864.05 in medical expenses; employer also paid claimant $6,737.86 in temporary total disability benefits, $865 in temporary partial disability benefits, and $1,606.88 in permanent partial impairment benefits. After receiving the medical panel’s report, employer paid claimant for an additional 2 1/2% permanent whole-person impairment, deducting attorney’s fees and paying them directly to claimant’s attorney, for a total permanent partial impairment payment of $4,563 plus interest.
Facts/Contentions --Claimant was walking in employer’s parking lot when some shopping carts a customer was pushing hit her, causing her to slip and fall backwards, landing in an oil puddle. She landed on her left buttock and left arm. She was taken to a local ER for emergency evaluation because of an immediate onset of neck and lower back pain. After her injury, she attempted to return to work as a go-back, in the service booth and as a front-end manager at employer’s grocery store, but she was unable to continue because of pain. Employer eventually created a part-time sedentary job for her, answering telephones, but when the store was taken over by a new owner who would not allow claimant to answer phones, she quit. Employer offered claimant a full-time telephone survey job within the restrictions imposed by her injury, but she did not accept it because she did not believe she could sit for eight hours. She said she experienced debilitating depression after her injury.
Self-insured employer accepted liability and paid benefits, but disputed the extent of claimant’s injuries, the degree of her permanent impairment, work restrictions, and the date on which claimant attained medical stability. Employer contended that only the elbow injury caused permanent partial impairment.
The medical panel found the medical record supported claimant’s allegation of back pain and depression following her fall, and the treatment she received for these complaints was reasonable and necessary, but any medical care for neck problems was not medically necessitated by claimant’s industrial injury. The panel found claimant stabilized medically five months after she was injured. The panel found claimant’s depression did not present a ratable impairment, but awarded claimant a 4 1/2% related whole-person permanent impairment rating for her head fracture and her lumbar strain with persisting symptoms. The panel found no future treatment is necessary for the head fracture, which is well-healed. The panel recommended a self-directed exercise program for claimant’s low back symptoms. The panel found claimant is not subject to any work restrictions, and her claim to such restrictions is essentially subjective, since that claim is the result of pain experienced by claimant and not of any objective physical problems caused by the industrial accident. The panel felt claimant is capable of performing medium- to light-duty work, and does not suffer any mental limitations on the type or amount of work she can perform as a result of her depression.

WORK INJURY CLAIMS
Case Type --WA; Work-related injury claims
Case Name --Connie Loiselle vs. Compeq International Corporation; Workers’ Compensation Fund; Host Marriott; and Travelers Insurance
Case Number --2002937, 2002938
Court/Judge --Marlowe
Verdict/Settlement --Order, 7/03
Amount --After claimant failed to appear at the hearing when it was finally held after two prior reschedulings, the ALJ noted that claimant had been allowed adequate time to find representation. The ALJ dismissed this claim without prejudice.
Attorney(s) - Plaintiff --Claimant was unable to find representation.
Attorney(s) - Defense --For Marriott/Travelers: Mark G. Sumsion of Richards, Brandt, Miller & Nelson; for Compeq/WCF: Hans M. Scheffler
Facts/Contentions --Claimant’s hearing was first scheduled for May 6, 2003 and rescheduled for June 26, 2003. The hearing was then rescheduled again for July 8, 2003. The Commission received a letter from claimant on July 3, 2003 stating that she had determined that she needed and attorney and was trying to find one, and wanted the hearing continued. The letter also stated that a clerk at the Commission had told claimant the hearing would be continued. The ALJ was out of town and did not grant the request. When claimant failed to appear at the hearing on July 8, the ALJ reached her by phone, and she said she had talked to several attorneys but was unable to get one to agree to represent her. Her request for a continuance was made less than one week before the hearing.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Traci L. Pando vs. 7-Eleven
Case Number --2003471
Court/Judge --George
Verdict/Settlement --Order, 7/03
Amount --The ALJ dismissed this case for claimant’s failure to respond to the Commission’s request for essential supporting documentation.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --This case had not progressed to the point where employer was notified of the claim and might thus have obtained representation.
Facts/Contentions --The Commission requested supporting documentation on claimant’s allegation of injury on May 2, 2003. Claimant failed to respond.

ORDER ON MOTION FOR REVIEW
Case Type --OD; Occupational disease claim
Case Name --(Name of case withheld)
Case Number --000404
Court/Judge --This case was reviewed and the order was issued by Commissioner R. Lee Ellertson.
Verdict/Settlement --Order on motion for review, 7/03
Amount --The Commissioner granted the motion for review and found that the evidence given regarding claimant’s employability review indicated persuasively that claimant can perform light duty work in a non-hospital environment; such jobs include customer service, telephone sales, and reservations. The Commissioner therefore found that claimant failed to prove there was no suitable work available to her and thus did not meet the burden of proof in her claim of permanent and total disability. The Commissioner reversed the ALJ’s tentative finding of permanent and total disability and released the ERF from liability in this matter.
Injuries --Claimant suffered chemical sensitivities which manifested as fatigue, nasal problems, chest problems, rashes and muscle/joint pain. She also suffered cognitive impairment. The medical panel awarded her a 15% related whole person impairment rating for the cognitive difficulties, but found she had no ratable impairment in relation to her physical symptoms. She has qualified for Social Security disability benefits.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --For employer: Henry K. Chai II of Blackburn & Stoll; for Employer’s Reinsurance Fund (ERF): Sherrie Hayashi
Expert Witness(es) --This case was referred to a medical panel.
Facts/Contentions --The original ALJ in this case accepted the medical panel’s finding that claimant’s multiple chemical sensitivities, latex allergy and cognitive impairment were caused by her exposure to radiographic chemicals while she was developing X-rays in the course of her work as an X-ray technologist. The ALJ at that time awarded claimant temporary total disability and medical benefits, but did not award permanent total disability benefits because claimant did not seek them. Claimant alleged permanent total disability in 2000, and a new ALJ issued a finding of tentative permanent and total disability and awarded claimant subsistence benefits pending a final finding of permanent and total disability.
Employer filed a motion for review, contending that it commissioned an employability evaluation which revealed that claimant was capable of performing light duty sedentary work such as telephone duty.
The Commissioner noted that claimant can perform housework, although with frequent rest and at a slow pace. She is able to shop in grocery and department stores and drives her own car. She successfully applied for an insurance license, but felt she could not retain the necessary information to use it. She has not applied for work or otherwise tested the job market for someone with her skills and limitations. The Commissioner noted in granting the motion for review that the burden of proof in a permanent total disability claim rests with the employee, who must provide evidence indicating she cannot obtain or perform other work reasonably available in light of her age, education, past work, medical capacity and residual functional capacity. Since she has not undertaken any review of the labor market in general or tested it by applying for work, claimant has not controverted the employability review’s indication that suitable work is available to her.

ORDER ON MOTION FOR REVIEW
Case Type --WA; Work-related injury
Case Name --Hossam N. Bahr vs. Summit Printing and Workers’ Compensation Fund
Case Number --010781
Court/Judge --This order was issued by the Labor Commission Appeals Board, consisting of Colleen S. Colton, Patricia Drawe, and Joseph Hatch.
Verdict/Settlement --Order on motion for review.
Amount --The Appeals Board affirmed the ALJ’s decision and denied claimant’s motion for review.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Hans M. Scheffler
Expert Witness(es) - Plaintiff --Dr. Stadler
Damages --Employer/carrier accepted liability and paid benefits, with the exception of one bill from Dr. Stadler, until claimant failed to submit any medical bills for a period of over three consecutive years, at which time employer/carrier denied further liability.
Facts/Contentions --After claimant was injured at work, his employer paid his medical bills and also paid him other disability benefits. Claimant then failed to submit any bills for medical expenses for a period of about four years. When he again submitted medical bills for treatment related to his industrial injury after that time, employer/carrier denied further liability, citing the portion of the Workers’ Compensation Act which states that an injured employee’s entitlement to medical benefits ceases if the employee fails to submit medical bills to employer/insurer for a period of three consecutive years. The ALJ upheld employer/carrier’s denial of benefits and dismissed the claim with prejudice; claimant filed a motion for review by the Commission’s Appeals Board.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --(Name of case withheld)
Case Number --2002232
Court/Judge --Eblen
Verdict/Settlement --Order, 7/03
Amount --Since claimant was terminated from her job with employer because of her many accidents and not because she could no longer perform the duties associated with her job, the ALJ found she was capable of performing the work she was doing before she fell. The ALJ also noted that claimant did not look for work after she was injured, but instead consulted the Division of Vocational Rehabilitation. Claimant thus did not present any evidence indicating that she was unable to find work within her physical limitations and restrictions. The ALJ therefore dismissed her claim of permanent total disability with prejudice.
Injuries --Claimant suffered a lower back injury and underwent a two-level discectomy. The medical panel awarded her a 13% related whole-person impairment rating.
Attorney(s) - Plaintiff --Aaron J. Prisbrey, St. George
Attorney(s) - Defense --Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel.
Facts/Contentions --Claimant worked at self-insured employer’s mushroom farm, putting mushrooms into baskets, dumping the baskets into bulk containers for shipping, and sliding racks of baskets on the floor. She contended that her job required her to lift between 30 and 50 pounds, but the medical panel found that she handled items weighing 2 1/2 to 3 pounds and occasionally lifted packages weighing 10 pounds. Claimant was injured when she caught her foot on an electrical cord, slipped and fell. She was terminated by employer a year after her fall because her frequent accidents led her employer to fear she would be seriously hurt if she continued working for employer. Claimant has not worked since her fall; she only held one job for wages during her lifetime, and that was for this employer. She testified that she cannot stand for 8 hours a day and claimed she was permanently and totally disabled by the fall. She speaks Spanish and cannot read or write English or hold a conversation in English. She enrolled in an English as a Second Language course, but was unable to continue with it after it was transferred to a nearby town because she does not have a driver’s license and has no way to get to the classes. After her termination, she sought assistance from the Division of Vocational Rehabilitation; personnel there noted that her capacity for sustained standing, walking, lifting, carrying and other physical activities required by her prior job with employer have been severely limited by her injuries. The Division found she lacked transferrable skills. Claimant did not seek other work after she was terminated from this job.
Employer contended that claimant was not totally disabled and was capable of performing sedentary work.
The medical panel noted that claimant sat comfortably for one and a half hours during her evaluation, which is not frequently seen in individuals with painful low back problems. The panel concluded that claimant was medically stable and capable of performing light duty work with no lifting over 20 pounds, no frequent lifting of 10 pounds, and avoidance of bending, stooping or crawling.

OCCUPATIONAL DISEASE CLAIMS
Case Type --OD; Occupational disease
Case Name --(Name of case withheld)
Case Number --9990,99255
Court/Judge --George
Verdict/Settlement --Order, 7/03
Amount --The ALJ noted that claimant’s work attendance was often interrupted for long periods of time, especially in the winter. The ALJ did not find him a credible witness. The ALJ found that claimant failed to prove by a preponderance of the evidence that he reported his industrial injury to his employer before filing his application for a hearing 698 days later. The ALJ noted that this period far exceeds 180 days following the alleged occupational disease exposure. Under Utah law, an injured or ill employee is allowed 180 days in which to report an industrial injury to employer and qualify for workers’ compensation benefits. The ALJ therefore dismissed this claim with prejudice on grounds that it was not timely filed. The ALJ also noted that even if the complaint had been timely filed, the medical record indicated that there was no cause for concluding that claimant’s problems were caused by anything other than skiing, four-wheeling and a life of hard ranch work.
Injuries --Claimant suffered right-hand severe carpal tunnel syndrome; right lateral extensor and lateral epicondylitis; and bilateral patellofemoral chondromalacia. He underwent surgery on his right wrist and right elbow.
Attorney(s) - Plaintiff --Raymond N. Malouf Jr. of Malouf Law Office, Logan
Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Facts/Contentions --After claimant filed his first request for a hearing, in which he claimed he suffered an industrial injury, self-insured employer filed a first report of injury indicating that it terminated claimant 8 months earlier; employer added that there was no record of an industrial injury or occupational disease claim having been made to employer by claimant before employer received the notice that claimant had filed an application for a hearing with the Labor Commission. The injury noted at that time was lateral epiphysitis of the right elbow, and there was no mention of knees. Claimant then filed an occupational disease claim alleging the above repetitive stress injuries which he claimed caused by repeated motions over a one-year period.
Employer denied liability, contending that claimant’s problems were caused by skiing and four-wheeling. His medical record indicated that he had a history of accidents connected with these activities, including one where he skied off a cliff and another where a four-wheeler going 30 miles per hour threw him onto his right side. Claimant asserted that he had no problems after this accident, but the medical record indicated that he had upper right extremity problems. When claimant was asked if he reported an industrial injury to his lead man and foreman after showing up at work with his arm in a sling, he took a very long time before he responded that he could not answer because he was under oath. The record also indicated that claimant branded cows on his ranch for three or four hours in a row before his symptoms flared. Claimant alleged that he was supervising and tattooing rather than roping or being involved in the more strenuous aspects of the branding. He was assisted by two hired hands. Claimant underwent physical therapy and cooperated with his health care providers.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Jose Jimenez vs. Win Trucking and Workers’ Compensation Fund
Case Number --2003647
Court/Judge --Eblen
Verdict/Settlement --Order, 7/03
Amount --The ALJ granted employer/carrier’s motion and dismissed this claim with prejudice on grounds that claimant had already entered into a full and final settlement with employer/carrier regarding the injuries caused by this accident.
Injuries --Claimant suffered injuries to his face, left shoulder and neck.
Attorney(s) - Plaintiff --Claimant was represented pro se in this action.
Attorney(s) - Defense --Hans M. Scheffler
Facts/Contentions --Claimant sought additional benefits for injuries resulting from this accident; employer/carrier moved to dismiss the action an grounds that claimant had already entered into a full and final settlement with employer/carrier regarding the injuries caused by this accident. Claimant was represented by legal counsel when he entered into the settlement agreement. His attorney spoke Spanish and the agreement was translated into spanish for claimant; the settlement was declared in the agreement to be “full and final.”

WORK INJURIES
Case Type --WA; Work-related injuries
Case Name --(Name of case withheld)
Case Number --97576, 991213, 991214, 20011070, 20011071, 20011072, 20011073, 2002595
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 7/03
Amount --The ALJ found that the fifth industrial accident caused claimant’s permanent and total disability. The ALJ dismissed the claims against Transwest, since this injury did not cause any of claimant’s permanent impairment. The ALJ ordered Quality Plating to pay claimant accrued temporary total disability benefits of $65.36 in a lump sum plus interest and less attorney’s fees and accrued permanent partial disability benefits of $1,185.60 in a lump sum plus interest and less attorney’s fees; Quality Plating must also pay all medical expenses related to the industrial accident claimant suffered while employed at Quality Plating. The ALJ ordered Barnard & Burke to pay claimant accrued permanent partial disability benefits of $1,895.40 in a lump sum plus interest and less attorney’s fees, as well as all medical expenses related to the injury claimant suffered while employed at Barnard & Burk. The ALJ ordered American Asbestos Abatement to pay claimant’s medical expenses related to the injuries he suffered while employed at American Asbestos Abatement. The ALJ ordered Ameritemps to pay claimant accrued permanent total disability compensation benefits of $74,880 in a lump sum plus interest and less attorney’s fees, as well as ongoing permanent total disability benefits of $240 per week less 50% of any Social Security retirement benefits claimant receives. Ameritemps must also pay all medical expenses related to the injury claimant suffered while employed at Ameritemps. All attorney’s fees are to be deducted from these awards and paid directly to claimant’s attorney.
Injuries --Claimant suffered low back injuries in the first three industrial accidents; in the fourth industrial accident he suffered a right comminuted calcaneus fracture which was surgically pinned; in the fifth industrial accident he suffered a significantly angulated fracture of the first proximal phalanx with probable intra-articular extension, which required four surgeries and caused ankylosis of the toes. Claimant received a 5% related whole-person impairment rating for the back injuries, a 9% related whole-person impairment rating for the heel fracture, and a 4% related whole-person impairment rating for the injury to his toe. Of the impairment related to his back injuries, half was attributable to the accident at Quality Plating and half to the accident at Barnard & Burk. Claimant also had several psychological disorders which made it difficult for him to learn a new way of earning a living or to comprehend or adapt to his changed circumstances; this disability left him with a 30% whole person impairment, of which 10% was industrially related.
Attorney(s) - Plaintiff --Richard Burke of King, Burke & Schaap
Attorney(s) - Defense --For Quality Plating/WCF: Elliot K. Morris; for American Asbestos Abatement/WCF: Floyd W. Holm; for Barnard & Burk Group/National Union Fire Insurance: Carrie T. Taylor of Richards, Brandt, Miller & Nelson; for Ameritemps/Hartford Insurance: Theodore E. Kanell of Plant, Wallace, Christensen & Kanell; Transwest was defunct and did not appear at the hearing, but the Uninsured Employer’s Fund and the Employers’ Reinsurance Fund, represented by Sherrie Hayashi, appeared at the hearing in order to deal with the issues that involved Transwest.
Expert Witness(es) - Plaintiff --Claimant’s multiple health care providers
Expert Witness(es) - Defense --Scott Knorpp, MD
Facts/Contentions --Claimant suffered an industrial accident while working for Transwest, another industrial accident while working for Quality Plating, a third industrial accident while working for Barnard & Burk, a fourth industrial accident while working for American Asbestos Abatement, and a fifth industrial accident while working for Ameritemps, Incorporated. At Transwest, a stack of trusses fell over and struck claimant on his lower back; at Quality Plating, he felt his back pop when he picked up a stack of metal plates weighing 30 to 40 pounds; at Barnard & Burk he slipped, fell, and landed with his low back resting on a pipe; at American Asbestos Abatement he fell over 20 feet from a scaffold and landed primarily on his right foot; and at Ameritemps he crushed his right big toe between the pallet jack he was driving and a steel I-beam. Claimant was unable to work at all after this last injury.
Employers/carriers all conceded that claimant was permanently and totally disabled; however, each employer contended that the accident which caused the disabling injuries was a different one than the accident defended by that employer.

SLIP
Case Type --WA, SF; Work-related slip
Case Name --Dennis R. Atkinson vs. Laurie Van Dam dna AA Tree Service and/or Workers’ Compensation Fund
Case Number --2002270
Court/Judge --Hann
Verdict/Settlement --Order, 7/03
Amount --The ALJ ordered employer/carrier to pay claimant accrued temporary total disability benefits of $12,492.49 in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses and must pay claimant temporary total disability benefits of $157 per week until his knee stabilizes medically. Attorney’s fees are to be deducted from these payments and remitted directly to claimant’s attorney.
Injuries --Claimant suffered a right knee injury which has not stabilized medically.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Eugene C. Miller Jr.
Expert Witness(es) - Plaintiff --Dr. Siggard
Expert Witness(es) - Defense --Stephen Marble, MD
Facts/Contentions --Claimant was injured at work, while walking over uneven ground covered by patches of snow, ice and mud, when he slipped and twisted his knee.
Employer stated that claimant was not a regular employee, but was only hired for one job; this contention was refuted by employer’s own records.

DEATH BENEFITS CLAIM
Case Type --WA, WD; Claim for work-related death benefits
Case Name --Martha Barraclough vs. Andrus Trucking Services, Incorporated and/or National Union Fire Insurance/AIG Claim Services
Case Number --97886
Court/Judge --George
Verdict/Settlement --Order, 7/03
Amount --The ALJ concluded that decedent’s widow failed to prove by a preponderance of the evidence that decedent died in the course and scope of his employment. The ALJ therefore dismissed this claim with prejudice.
Injuries --C. Lynn Barraclough’s wife claimed he was killed in the course and scope of his employment.
Attorney(s) - Plaintiff --Virginius Dabney of Dabney & Dabney, St. George
Attorney(s) - Defense --Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Expert Witness(es) - Plaintiff --Dr. Yanowitz
Expert Witness(es) - Defense --Todd Grey, MD; Dr. McCann
Facts/Contentions --Claimant stated that her husband suffered a heart attack while driving an 18-wheeler for employer and died two days later. She sought unpaid medical expenses, dependent’s compensation, burial expenses and interest. Decedent was just learning to be a truck driver, and he died on his first solo trip. His widow contended that the heart attack was brought on by the stress of this trip.
Employer/carriers contended that decedent’s heart condition pre-dated his employment with Andrus.
Decedent passed a pre-employment physical. His medical history indicated that he had prior venous thrombosis and pulmonary embolism, but did not have any significant risk factors which would have predisposed him to heart problems. Both claimant’s and employer’s physicians concluded that he died in the course and scope of his employment; however, Dr. Grey and Dr. McCann argued that decedent’s heart condition had developed over many years and the heart attack could not have resulted from the stress of decedent’s learning a new job as a truck driver.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --(Name of case withheld)
Case Number --98385
Court/Judge --Eblen
Verdict/Settlement --Amended order, 7/03
Amount --The ALJ found that claimant is entitled to receive permanent partial disability benefits and medical benefits in future as they accrue. Claimant’s total third-party recovery in Third District Court exceeds the amount of workers’ compensation benefits owed in this matter; therefore, employer/carrier does not need to pay the additional compensation awarded in this order. Employer/carrier is entitled to offset the amount of these awards against the total third-party recovery and pay claimant their proportionate share of attorney’s fees for these benefits. The offset to which employer/carrier is entitled for permanent partial disability benefits related to claimant’s orthopedic injuries is $12,879; employer/carrier is also entitled to a $4,290 offset for permanent partial disability benefits related to claimant’s headaches, a $6,435 offset for permanent partial disability benefits related to the brain injury, a $3,470.63 offset for past medical expenses, and an offset for future medical expenses as they are incurred and submitted against the third-party recovery. Employer/carrier shall pay 37% of the attorney’s fees for those medical expenses to claimant as medical expenses are incurred. Employer/carrier must pay claimant $10,014.28 plus 37% of the interest on the above awards for the offsets listed above.
Injuries --Claimant suffered spinal injuries, a brain injury, and orthopedic injuries; spinal surgery was performed.
Attorney(s) - Plaintiff --L. Rich Humpherys of Christensen & Jensen
Attorney(s) - Defense --Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Facts/Contentions --The ALJ issued an order on this case in December of 1998, but the parties disagreed on reimbursement of attorney’s fees on future medical expenses and also on the date interest should begin to accrue on the permanent partial disability award.
FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --R. Michael O’Hallaren vs. Forever Homes and Workers’ Compensation Fund
Case Number --2002637
Court/Judge --Eblen
Verdict/Settlement --Order, 7/03
Amount --The ALJ found claimant was injured in the course and scope of his employment; however, the ALJ found, the accident merely exacerbated his pre-existing degenerative knee condition and no further medical treatment is necessary to resolve the industrial injury. The recommended surgery or surgeries are needed to treat the underlying, pre-existing condition. The ALJ therefore dismissed this claim for future medical expenses with prejudice.
Injuries --Claimant suffered a knee injury; subsequent diagnostic procedures revealed severe osteoarthritis. Arthroscopy has been recommended, and a future total knee arthroplasty is possible.
Attorney(s) - Plaintiff --Aaron J. Prisbrey, St. George
Attorney(s) - Defense --Stephen W. Urquhart of Thompson Awerkamp, St. George
Expert Witness(es) - Plaintiff --Dr. Parry--orthopedic surgeon
Expert Witness(es) - Defense --Dr. Richard Knoebel--independent medical examination physician
Facts/Contentions --Claimant was descending the steps of a model home at work when his left foot slipped on the ice, his right knee twisted and he fell, landing on his buttocks with his right leg underneath him on a step 6 to 8 inches off the ground. He sought medical care immediately and continued to work; he said he might have taken one to three part-days off after the accident. He filed this claim for future medical benefits to pay for the recommended knee arthroscopy and the possible total knee arthroplasty.
Employer/carrier contended that the fall merely exacerbated a pre-existing degenerative knee condition and did not constitute a new injury. They therefore declined to pay for the surgeries.

FALL
Case Type --WA, SF; Work-related fall
Case Name --Press Perea Jr. vs. Boise Cascade Corporation (self-insured)
Case Number --20011289
Court/Judge --Hann
Verdict/Settlement --Order, 7/03
Amount --The ALJ found that claimant was injured in the course and scope of his employment, but is not entitled to any further permanent partial disability benefits beyond those already paid by employer. However, the ALJ ordered employer to pay the outstanding medical expenses and future medical expenses for treatment of claimant’s headaches.
Injuries --Claimant suffered a fractured right wrist and a head injury. He received a 6% related whole-person impairment rating from Dr. Gordon for his wrist and a 5% related whole-person impairment rating from Dr. Chung for his headaches.
Attorney(s) - Plaintiff --Sandra N. Dredge of Dredge Lallatin, Provo
Attorney(s) - Defense --Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Expert Witness(es) - Plaintiff --Dr. Gordon; Dr. Digre; Dr. Chung
Expert Witness(es) - Defense --Dr. Knoebel, Dr. Roberts--independent medical evaluation physicians
Facts/Contentions --Claimant was at work when he fell off a trailer and landed on a loading dock.
Employer admitted that the accident occurred, but denied liability.

FALL
Case Type --WA, SF; Work-related fall
Case Name --John Defries vs. Curtco Partnership and/or Workers’ Compensation Fund
Case Number --2001221
Court/Judge --George
Verdict/Settlement --Order, 7/03
Amount --The ALJ accepted the medical panel’s findings and ordered employer/carrier to pay claimant $27,534 for his 25% related permanent whole-person impairment, less credit for the 5% they have already paid. This award is due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay all related medical expenses, excepting those for Dr. Peterson’s extensive program. Claimant was strongly urged to submit proposed future medical and dental expenses to employer/carrier for pre-authorization.
Injuries --Claimant suffered a right sternoclavicular joint sprain, a distal left wrist fracture and a right mandibular condyle fracture.
Attorney(s) - Plaintiff --Floyd W. Holm; then Dale W. Sessions, Cedar City
Attorney(s) - Defense --Elliot K. Morris
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel. The parties agreed to waive the hearing and rely on the panel’s findings.
Damages --Employer/carrier paid claimant $10,041.43 in temporary total disability benefits, $5,506.80 in permanent partial impairment benefits, including payment for a 5% related whole-person impairment; and $13,374.42 in medical benefits.
Facts/Contentions --Claimant was injured when he fell approximately 11 feet to the ground from the scaffold on which he was standing.
Employer/carrier disputed the amount of future treatment needed and claimant’s degree of permanent impairment. Dr. Knorpp awarded claimant a 2% related whole-person impairment rating for his TMJ injury. However, Dr. Peterson rated claimant’s whole-person impairment from the TMJ injury at 23% and felt further treatment would be needed, including insertion of a neuromuscular orthopedic appliance to stabilize the joint; occlusal posture and myofunctional therapy; TENS; ultrasound; trigger point injections; cryotherapy; and restoration of dental work. Dr. Knorpp felt no further treatment was necessary.
The medical panel awarded claimant a 3% related whole-person impairment rating for his sternoclavicular injury; a 10% related whole-person impairment rating for the wrist injury; an 11% related whole-person impairment rating for the TMJ injury; and a 1% related whole-person impairment rating for the loss of a tooth, for a total related whole-person impairment rating of 25%. The panel found future dental care would be reasonably necessitated by claimant’s injuries, as would possible clavicular and/or wrist surgeries.

REPETITIVE STRESS INJURY
Case Type --WA, SI; Work-related repetitive stress injury
Case Name --Karen Paulus vs. Moroni Feed Company and Workers’ Compensation Fund
Case Number --2000882
Court/Judge --Eblen
Verdict/Settlement --Order, 8/03
Amount --The ALJ accepted the medical panel’s findings and ordered employer/carrier to pay claimant’s medical expenses, including those for the cervical spinal surgery and follow-up treatment. Employer/carrier must also pay claimant temporary total disability benefits of $872 per week for the time she was doing light duty work at Taco Bell, and permanent partial disability benefits of $9,828 for her 15% related whole-person impairment. Accrued amounts are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney.
Injuries --Claimant suffered right shoulder and cervical spinal injuries. She underwent one surgery on her right shoulder and discectomy and fusion surgery on her neck at C5/6 and C6/7.
Attorney(s) - Plaintiff --Aaron J.Prisbrey, St. George
Attorney(s) - Defense --Barbara W. Sharp
Expert Witness(es) --Because of conflicting medical testimony, the cervical spinal issue was referred to a medical panel composed of Dr. Ross McNaught--chair; and Dr. Randy Delcore.
Facts/Contentions --Claimant contended that her right shoulder and cervical spinal injuries were caused by repetitive actions performed while she was working at the Washington City Breeding Farm. For about eight months of the year, claimant sorted, checked and washed eggs, checking about 10,000 eggs a day (to see if they were fertile) in the height of the season, washing them, placing them in boxes, and stacking the boxes on the floor. For the other four months of the year, claimant vaccinated turkeys while a co-worker held them still. Daily production at the farm has increased from 33 cases, containing 140 to 160 eggs, to 43 cases over the past eight months. Claimant said the egg-washing job required her to move her head rapidly back and forth from the eggs to the washer and to look down while she operated the washer and marked the eggs. She is expert at running the egg-washing machine and could often process 60 eggs per minute rather than the usual 45 eggs per minute. She had no cervical spinal problems before she began working at the farm in 1983. Since undergoing neck surgery, claimant has not been able to work at the farm and has been performing a light duty job at a Taco Bell in St. George instead.
Employer/carrier accepted liability for the shoulder injury and agreed to pay for claimant’s surgery; however, employer/carrier disputed liability for the cervical spinal injuries, arguing that they were not caused by claimant’s activities at work. A vocational rehabilitation counselor with the WCF in St. George performed a job analysis of the egg-washing job and concluded that it required the ability to push and pull 10 pounds continuously.
The medical panel concluded that there was a reasonable causal connection between claimant’s work activities and her cervical spinal problems.

WORK INJURY
Case Type --WA; Work-related injury claim
Case Name --Evan Upton vs. Home Depot and/or Sedgwick CMS
Case Number --2002171
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 8/03
Amount --The ALJ found claimant failed to prove a causal connection between his actions at work and his back injury. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered a low back injury.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Facts/Contentions --Claimant contended that his activities at work, where he did a lot of lifting, caused his low back injury. He said the pain came on when he stood up after vacuuming his own car at home.
Employer/carrier argued that claimant’s injury was not caused by his activities at work. Claimant did not provide an opinion from a medical expert confirming a causal connection between his work activities and his back problems.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --Stacie J. Bradley vs. Papa John’s Pizza and/or Wausau Insurance Company
Case Number --2001191
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 8/03
Amount --The ALJ accepted the medical panel’s findings and also concluded that claimant’s fall exacerbated her low back problems and caused her six weeks of functional limitations before she reached medical stability. However, she was totally disabled for only five days, and is entitled to two days’ temporary total disability compensation after the first three days are deducted as mandated by Utah law. The ALJ found claimant worked a second job with the IRS, which was light duty work; claimant was therefore entitled to five weeks’ temporary partial disability compensation for the time she was working at the IRS but could not work for Papa John’s. The ALJ found employer/carrier did not owe claimant any permanent partial disability benefits and did not have to pay for her low back surgery. The ALJ ordered employer/carrier to pay claimant $95 in accrued temporary total disability benefits and $340 in accrued temporary partial disability benefits; these benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney. The ALJ ordered employer/carrier to pay claimant’s related medical expenses, excluding those for her surgery; the ALJ dismissed claimant’s request for permanent partial disability benefits with prejudice, since any impairment she suffered from her back condition was considered to be incurred before her industrial injury. Employer/carrier is entitled to a $177 offset for benefits they have already paid claimant.
Injuries --Claimant suffered a low back injury and was diagnosed with a herniated disc at L4/5 (causation disputed). She underwent surgery.
Attorney(s) - Plaintiff --L. Todd Sessions, Ogden
Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel.
Damages --Employer/carrier sent claimant two workers’ compensation benefit checks totaling $177 following her injury.
Facts/Contentions --Claimant slipped on a wet tile floor at work and fell, landing hard on her right hip and right wrist. She claimed that the fall caused her low back problems.
Employer/carrier admitted that the fall occurred, but contended that a herniated disc was visible in an MRI taken in 1998 and was therefore not caused by the fall. Though the herniation had progressed since that time, employer/carrier contended that the progression was degenerative rather than traumatic.
The medical panel found an MRI taken in 1999 that had not been reviewed by other experts in the case. From this evidence the panel concluded that claimant’s industrial fall did not cause her disc herniation. The panel found the fall caused a buttock contusion and a soft tissue lumbar strain which resolved without further symptoms.

FALL
Case Type --WA, SF; Work-related fall
Case Name --Sharon Cantu vs. Fresenius Medical Care and/or CNA Insurance
Case Number --2001261
Court/Judge --Hann
Verdict/Settlement --Order, 8/03
Amount --The ALJ accepted the medical panel’s findings and found claimant failed to prove her low back symptoms were caused by her industrial fall. The ALJ therefore dismissed the claim for benefits related to the low back problems with prejudice.
Injuries --Claimant suffered left wrist and forearm injuries; she also mentioned injuries to her buttock in one report. She later claimed a low back injury, contending that its symptoms did not manifest until six months after her fall.
Attorney(s) - Plaintiff --Randall G. Phillips of Phillips Law Office, Ogden
Attorney(s) - Defense --Thomas C. Sturdy of Blackburn & Stoll
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Madison Thomas--chair; and Dr. Glenn L. Momberger.
Facts/Contentions --Claimant stated that she was injured when another worker pulled her chair out from under her as she was sitting down, causing her to fall. Claimant landed on her tailbone, using her left hand to try to catch herself. She was concerned that stitches from her recent gallbladder surgery might have been ripped, and immediately went to the bathroom to check; the stitches were intact and claimant was able to continue working.
Employer/carrier agreed that the accident occurred and accepted liability for the left arm injury, but denied liability for the low back injury.
The medical panel found no medical causal connection between claimant’s fall and her later low back problems.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Marciano Cardenas vs. A Plus Property and/or Utah Property & Casualty Insurance Guaranty Association
Case Number --20021402
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 8/03
Amount --The ALJ found Dr. Wyman’s bill was a legitimate expense for claimant’s industrial injury and ordered employer/carrier to pay it.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Thomas C. Sturdy of Blackburn & Stoll
Facts/Contentions --After claimant was injured, employer/carrier accepted liability and paid benefits. However, claimant contended that employer/carrier failed to pay a bill for treatment provided by Dr. Dennis Wyman, while employer/carrier argued that they had paid all of claimant’s related medical expenses.
At the hearing, the parties stated that they had reached a settlement agreement, which provided in part that employer/carrier would pay all related medical expenses, specifically mentioning Dr. Wyman’s bill. The parties therefore stated that no issues remained disputed between them, and the hearing was adjourned.

REPETITIVE STRESS INJURY
Case Type --WA, SI; Repetitive stress injury claim
Case Name --Cynthia Hall vs. Gateway 2000 and/or Pacific Indemnity
Case Number --2001966
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 8/03
Amount --The ALJ accepted the medical panel’s report and found claimant failed to prove her left and right arm symptoms were caused by her work at Gateway. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered right lateral epicondylitis and medial epicondylitis, as well as right cubital tunnel syndrome; she underwent surgery. Claimant later developed left arm problems as well, and was diagnosed with irritation of the ulnar nerve at the elbow, irritation of the carpal tunnel at the wrist, and some irritation of the left cubital tunnel.
Attorney(s) - Plaintiff --David W. Brown
Attorney(s) - Defense --Mark A. Riekhof of Dunn & Dunn
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Joseph Jarvis--occupational medical specialist and chair; Dr. Evan Black--neurologist; and Dr. Dennis Gordon--orthopedic surgeon.
Facts/Contentions --Claimant worked at Gateway assembling CPU units. She stated that she was lifting a 4' x 4' frame weighing about 8 pounds out of a box when she felt a tear in her right elbow. Her work involved pulling the CPU from a spinning wheel, putting a sticker on it, placing it in an anti-static bag, placing the unit in a tote, and then putting the tote on a “gravity rack.” She estimated that the totes weighed 30 to 60 pounds, and said she did 36 to 40 units per hour, working ten-hour days for six or seven days per week. Claimant said she felt a sharp pain in her elbows whenever she lifted anything over 30 pounds. A year after leaving Gateway, claimant began to experience left arm problems.
Employer/carrier contended that claimant’s right arm problems were caused by an earlier injury, when she bumped her right elbow in 1997 while working for another company. Claimant argued that the symptoms caused by this bump resolved without any further recurrence three weeks after she quit working for the other company. Employer/carrier disputed the necessity for the medical treatment claimant received and denied any liability for claimant’s left arm problems, contending that they developed so long after claimant left Gateway as to be totally unconnected with her work there.
The medical panel found that neither claimant’s right and left arm problems were caused by her work activities at Gateway. The panel noted that because claimant continued to develop symptoms long after she left Gateway, she was obviously predisposed to these conditions.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Christopher Kern vs. Brady Roofing, Incorporated and Workers’ Compensation Fund
Case Number --20021160
Court/Judge --Marlowe
Verdict/Settlement --Order, 8/03
Amount --Since claimant failed to appear, the ALJ declared him to be in default and dismissed his claim with prejudice.
Attorney(s) - Plaintiff --Arthur Lee Bishop III
Attorney(s) - Defense --Floyd Holm
Facts/Contentions --At claimant’s scheduled hearing, he failed to appear. His attorney said he had made every effort to contact his client without success. A copy of the hearing notice was mailed to client at his last known address by the Labor Commission. A party who files a claim with the Commission is obligated to keep the Commission apprised of his current address while his claim is pending.

ORDER ON MOTION FOR REVIEW
Case Type --WA; Work-related injury
Case Name --Barry Martin vs. Marvin Fuggle and Uninsured Employers’ Fund
Case Number --010665
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 8/03
Amount --The Commissioner noted in his opinion that respondent was allowed more than a year to obtain and submit any relevant evidence before the hearing was held. The Commissioner stated that he felt respondent filed this motion for review in hopes of obtaining a more favorable result, even though respondent has already been found liable for claimant’s benefits. The Commissioner therefore affirmed the ALJ’s decision and denied this motion for review.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Terry R. Spencer (retained after the ALJ’s order was issued); for UEF: Lori Lima
Facts/Contentions --Claimant stated that he was injured while working as a tile-setter for uninsured employer (respondent). Employer did not file an answer to the claim, but he appeared at the evidentiary hearing on claimant’s case and presented testimony, denying that he was claimant’s employer at the time of the injury and contesting liability. The ALJ concluded that respondent was claimant’s employer at the time of claimant’s injury and was liable for claimant’s benefits. After judgment was entered against him, respondent retained an attorney and filed a motion for review, asking the Commission to re-open the evidentiary hearing in order to allow respondent to subpoena and submit additional evidence.

FALL
Case Type --WA, SF; Work-related fall
Case Name --Delana Wakita vs. CHC Development dba Green Valley Spa and/or Workers’ Compensation Fund
Case Number --2002352
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 8/03
Amount --The ALJ found claimant’s functional limitations prevented her from performing the essential duties of the work for which she was qualified before her industrial injury. The ALJ therefore issued a preliminary finding of permanent and total disability and ordered employer/carrier to pay claimant subsistence benefits of $213 per week pending a final finding. Payments were to begin August 13th (the date of this order). Employer/carrier must also pay all claimant’s related medical expenses. If employer/carrier should wish to submit a re-employment plan for claimant, they must do so within 30 days of the date of this order. Claimant’s attorney is to be paid by employer/carrier, with these payments pro-rated according to the benefits paid claimant.
Injuries --Claimant suffered a triangular fibrocartilage complex central tear in her left wrist, as well as a left scapholunate interosseous partial ligament tear; the accident also left her with mild left elbow cubital tunnel syndrome. Claimant underwent surgery to repair her wrist injuries and received a 9% related whole-person impairment rating for these injuries. She was restricted to lifting no more than five pounds and no significant pushing, pulling, carrying, forceful gripping or reaching. Claimant also experienced cervical spinal problems and left shoulder pain resulting from partial tears of the articular surface supraspinatus tendon with intrasubstance extension and/or associated tendinopathy, but since neither Dr. Knoebel nor claimant’s treating physicians gave her an impairment rating for either of these conditions, they were not used in the determination of claimant’s degree of impairment.
Attorney(s) - Plaintiff --Aaron J. Prisbrey, St. George
Attorney(s) - Defense --Stephen H. Urquhart of Thompson Awerkamp, St. George
Expert Witness(es) - Plaintiff --Dr. Tracy Orr; Dr. Scott Parry; Michael Ferrin--supervisor at the Utah State Office of Vocational Rehabilitation and vocational rehabilitation expert
Expert Witness(es) - Defense --Dr. Richard Knoebel--independent medical evaluation physician; Nancy Morrell--Workers’ Compensation Fund vocational rehabilitation counselor
Facts/Contentions --Claimant worked as a housekeeper at the Green Valley Spa. She stated that she was injured while making beds at the spa, when she fell off the top bed of a bunk-bed and landed on her extended left hand and arm. She fell about five and a half feet. After treating her left arm with ice for three days, claimant sought medical attention when she had difficulties moving her left hand and arm.
Employer/carrier admitted that the industrial accident occurred, but denied that it left claimant permanently and totally disabled. Employer terminated claimant’s employment after she was injured because they had no light duty work available. Claimant tried to work at a restaurant and a motel, but had to quit because of pain. She has not worked since. She is 44 years old and never graduated from high school, and though she had a past history of work as a dog groomer, she was unable to return to that work because she could no longer lift the dogs, which weighed between 2 and 150 pounds. She had worked as a waitress, but could no longer lift the trays. All her other past jobs, including work as a bartender, day-care attendant, wedding chapel hostess, and slot foreman in a casino, required her to lift and carry objects that weighed more than she was allowed to lift under her medical restrictions.
Michael Ferrin testified that in his opinion claimant would be unable to return to any of her past employment activities, and could not resume work without undergoing vocational rehabilitation. Nancy Morrell testified that she felt claimant was capable of performing certain jobs such as cashier work. Morrell said she referred claimant to the restaurant where she tried to work; she was referred as a cashier, but the restaurant required her to wash dishes, including large pots and pans, and stack cans; claimant was unable to do this work without experiencing severe pain and quit after two days. Morrell also thought claimant could work as a desk clerk at a motel, but this job also required her to do laundry, lifting sheets and quilts over five pounds in weight; once again claimant had to quit because of pain. Morrell felt claimant could work as a telephone solicitor or sales clerk, but was unable to identify any specific workplaces of that type who had job openings and would hire claimant given her limitations.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --Mary Hendrix vs. Crunch Temporaries and/or Gallagher Bassett; and Twin Labs of Utah and/or Reliance National Insurance
Case Number --200136
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 9/03
Amount --The ALJ accepted the medical panel’s findings and concluded that claimant’s industrial accident caused her spinal cord impairment, which in turn caused her to become permanently and totally disabled. The ALJ ordered Crunch and/or Twin Labs to pay claimant permanent total disability subsistence payments of $193 per week for the period running from October 24, 2000 through the date of this order; these benefits are due and payable in a lump sum of $29,087.02 plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Crunch and/or Twin Labs must then pay claimant $193 per week in permanent total disability subsistence benefits until further notice (the ALJ is obligated by law to conduct a second hearing before issuing a final finding of permanent and total disability). The ALJ ordered Crunch and/or Twin Labs to pay claimant’s related medical expenses; if they intend to submit a re-employment plan, as is their right under Utah law, they must do so within 60 days of the date of this order.
Injuries --Claimant suffered a spinal cord injury that eventually resulted in incomplete quadriplegia and upper extremity paraplegia. She underwent a C1/2 posterior fusion with facet screws, posterior laminar wires and iliac crest bone graft.
Attorney(s) - Plaintiff --Scott F. Squire of Squire Law Office
Attorney(s) - Defense --Mark A. Riekhof of Dunn & Dunn
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel composed of Dr. Joseph Jarvis--chair; and Dr. Jeffrey Margetts--neurosurgeon.
Facts/Contentions --Claimant was assigned by Crunch Temporaries to work at Twin Labs. She had been at Twin Labs for some time when Twin Labs changed her assignment from production to janitorial work. She said she was cleaning the ceiling of one of the encapsulation rooms with a long-handled squeegee, and in the process backed across the room, which was a small cinder-block cubicle with a stainless steel encapsulation machine in the middle of the floor. Claimant said she stepped into an open drain in the corner of the room, spun to the right, hit the right side of her head on the wall and slid to the floor. She did not lose consciousness. A supervisor and a co-worker helped her get her foot out of the drain and stand up. She said she worked the rest of her shift on modified duty, pushing a garbage can on wheels behind another employee. She worked the next three days, but said that after that she was in so much pain that she called Twin Labs and told them she could not continue to work there. She has not worked since, and her condition gradually worsened. She is now living in a rehab center, where she receives help with basic self-care.
The co-worker testified at the hearing that she heard claimant exclaim, “Ouch!’ The co-worker turned to see claimant fall against the wall and catch herself with her hands, but did not see claimant hit her head or shoulders on the wall. Employers disputed the claim that the fall caused permanent and total disability, pointing out that claimant had a prior history of neck and back problems. Claimant sustained a hairline fracture of her cervical spine in a car accident in 1966; she said she wore a neck collar for several weeks and experienced no further symptoms. Employers did not dispute the fact that claimant is permanently and totally disabled.
The medical panel concluded that claimant’s spinal cord injury was caused by her industrial accident.

FALL
Case Type --WA; Work-related fall
Case Name --(Name of case withheld)
Case Number --2002579
Court/Judge --Hann
Verdict/Settlement --Order, 9/03
Amount --The ALJ found that though the industrial accident occurred, it did not cause claimant’s permanent and total disability; the ALJ therefore dismissed the claim for permanent total disability benefits with prejudice.
Injuries --Claimant injured her coccyx and underwent surgery, which left her with a 5% related whole-person impairment rating. She had a previous fusion surgery at L5/S1 due to spondylolisthesis which caused an additional 10% non-related whole-person impairment. Dr. Bauman’s impression was that she suffered from failed back syndrome. She has qualified for Social Security disability benefits.
Attorney(s) - Plaintiff --Kevin K. Robson of Bertch Robson
Attorney(s) - Defense --Floyd Holm
Expert Witness(es) - Plaintiff --Dr. Bauman
Expert Witness(es) - Defense --Dr. Knoebel
Facts/Contentions --Claimant injured her coccyx in a fall at work. Employer/carrier admitted that the accident occurred, but disputed the claim that it caused her permanent and total disability; employer/carrier did not dispute the fact that claimant is permanently and totally disabled. Claimant quit working for this employer almost two years after her fall, contending that increasing back pain made it difficult for her to do the lifting that was part of her job duties. She later found other work and continued with several other employers until she was involved in a motor vehicle accident. She said the accident was “the straw that broke the camel’s back” in that she had been deteriorating slowly from the time of the fall up until the motor vehicle accident; after that time she deteriorated more rapidly, until she is now completely disabled.
Claimant has a significant history of pre-existing psychological conditions and has been hospitalized numerous times, beginning at age 14. Her treatment providers stated that she suffers from dissociative identity disorder, major recurrent depressive disorder, anxiety disorder, pain disorder associated with psychological factors, conversion disorder, cognitive disorder, opioid dependence, and somatiform disorder with borderline schizotypal histrionic and dependent traits. She also has problems with chronic fatigue syndrome, post-traumatic stress syndrome which stemmed from the fall, fibromyalgia, migraine and arthritis.

OCCUPATIONAL DISEASE
Case Type --OD; Occupational disease claim
Case Name --Jeffrey R. Haws vs. United States Government/Ashley National Forest
Case Number --2003817
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 8/03
Amount --The ALJ ruled that the Utah Labor Commission does not have jurisdiction over federal employees, who must seek relief from work injuries before the United States Secretary of Labor under the terms of the Federal Employees’ Compensation Act.
Injuries --Claimant developed skin cancer.
Attorney(s) - Plaintiff --K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense --Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Facts/Contentions --Claimant contended that his skin cancer was caused by exposure to the sun which he suffered while working for the U. S. Government in Ashley National Forest.

WORK INJURY
Case Type --Work-related injury
Case Name --Brenda K. Burgess vs. Developmental Services of Utah and/or Workers’ Compensation Fund
Case Number --2001906
Court/Judge --Hann
Verdict/Settlement --Order, 9/03
Amount --The ALJ ruled that claimant suffered an industrial injury, and that the work activities which caused it exceeded those which a person might encounter in everyday life and thus met the Allen test (Utah case law states that an in order to qualify for benefits, an injured worker must prove the work activities leading to the injury exceeded such everyday stressors as lifting a toddler or a bag of groceries). The ALJ ordered employer/carrier to pay claimant $3,631.68 in accrued permanent partial disability benefits for her 4% related whole-person impairment. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses, but the ALJ found the issue of future treatment was not ripe for adjudication at this time, since claimant does not need any further care right now.
Injuries --Claimant suffered neck and shoulder injuries. She underwent a left shoulder arthroscopy and debridement with a Bankart lesion repair and installation of absorbable Mitek anchors. She later underwent a foraminotomy at C5/6 and C6/7, suffering chemical burns during this surgery. Dr. Dall gave claimant a 2% related whole-person impairment rating for the shoulder injury and 2% related whole-person impairment rating for the neck injury; he felt 30% of her need for treatment resulted from industrial causes and 70% resulted from pre-existing non-industrial causes. She underwent injection treatment after her surgeries, but continued to experience pain. Neither Dr. Dall nor Dr. Woessner recommended that claimant receive any further medical treatment, and both found she was medically stable. Dr. Woessner, however, recommended possible future treatment in three to five years.
Attorney(s) - Plaintiff --Loren M. Lambert of Arrow Legal Solutions
Attorney(s) - Defense --Eugene C. Miller Jr.
Expert Witness(es) - Plaintiff --Dr. Kirstein; Dr. Kimball--treating surgeon; Dr. Alderson; Dr. Woessner
Expert Witness(es) - Defense --Dr. Dall--independent medical examination physician
Facts/Contentions --Claimant, who worked for employer as an aide to disabled persons, stated that she was injured while lifting a large patient. The patient, who weighed 240 pounds and was paralyzed on one side, was attempting to transfer from his wheelchair to a UTA van, and claimant lifted him under his armpits so he could maneuver his non-paralyzed side onto a step-stool, at which point another aide inside the van was prepared to help him get into a seat. Claimant stated that she felt pain along the side of her neck as she lifted the man. She told her supervisor she felt as if she had pulled something in her back, but she continued to lift the same patient in the course of her work duties for the next two weeks as the pain in her neck increased. She said the pain manifested as a burning all up her back and into the neck and shoulder on the left side. She sought treatment after two weeks because, she said, her arm was so painful that it felt as if it were about to fall off.
Employer/carrier admitted that the incidents occurred, but denied that claimant’s symptoms were caused by her work activities, noting that claimant had a pre-existing motor vehicle injury which required surgical fusion at C4/5/6.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Lori A. Ford vs. Costco (self-insured)
Case Number --2002887
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 9/03
Amount --The ALJ found that claimant suffered an industrial injury, and added that the fact that Costco neglected to comply with reporting requirements did not negate the occurrence of the event. However, in the absence of any evidence proving a causal connection between claimant’s industrial accident and her right shoulder problems, the ALJ dismissed her claim for benefits with prejudice.
Injuries --Claimant suffered a shoulder injury. Her medical records indicated that she had a history of pre-existing right shoulder pain. Dr. Harrison, who treated her for several months, did not provide a diagnosis other than a reiteration of the complaint itself. Claimant eventually underwent right shoulder arthroscopy with debridement and arthroscopic subacromial decompression, as well as arthroscopic distal clavicle resection. All of her physicians agreed that she suffered from degenerative arthritis of the right shoulder, and none of them drew a causal connection between her industrial accident and her right shoulder pain.
Attorney(s) - Plaintiff --Randy M. Lish, Provo
Attorney(s) - Defense --Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Expert Witness(es) - Plaintiff --Dr. Harrison--treating physician; Dr. Patrick Greis--treating surgeon; Dr. Julia Crim--radiologist
Facts/Contentions --Claimant stated that she was injured while pulling ten shopping carts with a rope in employer’s parking lot. She said she reported the incident to her supervisor and then sought treatment at St. Mark’s Hospital and with her chiropractor. She said she took three days off because of pain, after which she returned to work and filled out an accident report; she said that at that time she discussed her injury with the manager.
Self-insured employer denied that the incident occurred; the manager at first stated that claimant mentioned some shoulder complaints but never related them to a work incident. However, the manager later admitted that claimant reported her work injury as such to her supervisor. That manager also admitted reporting claimant’s industrial injury to Costco’s workers’ compensation third party administrator. The payroll clerk at Costco stated that each shopping cart required about five pounds of force to pull; claimant therefore had to exert 50 pounds of force to move ten shopping carts. The payroll clerk confirmed that claimant reported the incident to her supervisor; however, the payroll clerk added that Costco neglected to report the industrial accident as required by law because claimant went to St. Mark’s without the prior knowledge of Costco.

REPETITIVE STRESS INJURY
Case Type --WA, SI, OD; Work-related repetitive stress injury claim, occupational disease claim
Case Name --Karl J. Higley vs. La-Z-Boy (self-insured)
Case Number --2003224
Court/Judge --Eblen
Verdict/Settlement --Order, 9/03
Amount --The ALJ found that the analysis of this case was governed by the plain language of the settlement agreement, which refers to claimant’s problems with his feet, not his foot. The ALJ felt that if the parties had wished to limit the agreement to compensation for claimant’s problems with his left foot only, they could easily have done so. The ALJ therefore found that this claim was barred by the provisions of the settlement agreement; she dismissed it with prejudice.
Injuries --Claimant suffered tarsal tunnel syndrome and nerve damage in his right foot.
Attorney(s) - Plaintiff --Marlin J. Grant of Olson & Hoggan, Logan
Attorney(s) - Defense --Henry K. Chai II of Blackburn & Stoll
Facts/Contentions --Claimant stated that his ongoing work activities caused his right foot problems.
Employer contended that claimant had already received full and final compensation for his foot problems pursuant to a settlement agreement reached by the parties. Claimant responded that the settlement agreement was limited to compensation for injuries to his left foot, and contended that he should be allowed to seek compensation for damage to his left foot before an ALJ.
The agreement mentioned “tarsal tunnel syndrome and nerve damage to his feet from work on his feet that involved pushing packaged chairs on a roller conveyor belt.” The settlement also contained a release of all past and future claims for the alleged occupational disease.

WORK INJURY
Case Type --WA; Work-related injury claim
Case Name --Kimber E. Hodges vs. Rocky Mountain Refrigeration dba Canyon Heating; and Workers’ Compensation Fund
Case Number --20021045
Court/Judge --Eblen
Verdict/Settlement --Order, 9/03
Amount --The ALJ found that the statute of limitations for this claim had expired, since claimant’s application for a hearing was filed more than six years after the accident. In order to prove a claim of permanent and total disability in such a case, the ALJ ruled, claimant would have had to prove he is not engaged in a gainful activity, prove he could qualify for Social Security disability benefits, and prove that his industrial impairment prevents him from doing not just his past work, but any type of gainful work in the future. Since claimant failed to do these things and since the statute of limitations had expired on his other claims, the ALJ granted employer/carrier’s motion and dismissed this claim with prejudice.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --For employer/carrier: Hans M. Scheffler; for Employers’ Reinsurance Fund: Lori Lima
Facts/Contentions --Claimant filed an application for a hearing on September 27, 2002 for an accident that occurred on January 31, 1994. Employer/carrier contended that the claim was barred because the statute of limitations on temporary total disability, temporary partial disability and permanent partial disability claims is six years, and the statute had expired. However, claimant also alleged permanent total disability, and the Utah Supreme Court found in Vigos vs. Mountainland Builders that an employee’s act of filing the required notice forms and acceptance of liability on the claim by the insurance carrier or employer triggered the Labor Commission’s continuing jurisdiction on a permanent total disability claim. Therefore, the ALJ ruled, the permanent total disability claim is not barred by the statute of limitations, even though it had expired for the other claims. Employer/carrier filed a motion to dismiss the claim.
At his deposition, claimant admitted that he does not believe he is totally disabled. When asked why he filed a claim of permanent and total disability, he said it was because he is not able to perform the required duties of his job with employer. The ALJ therefore found that the issue of claimant’s permanent and total disability is not ripe for adjudication at this time.

ORDER ON MOTION
FOR REVIEW
Case Type --WA; Work-related injury
Case Name --Maria Joyce Jacobs vs. Corporate Edge Printing and American Motorist Insurance
Case Number --010755
Court/Judge --This order was issued by Utah Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 9/03
Amount --The Commissioner noted that the facts for Ms. Jacobs’ claim made this a close case, but there was no evidence of any significance presented that could be viewed as contradicting the claim. The Commissioner added that though claimant’s impairment was not large as indicated by her impairment rating, it could not be said to be negligible given its effect on her life. The Commissioner therefore affirmed the ALJ’s decision and order.
Injuries --Claimant suffered a shoulder injury that left her with a 4% related whole-person impairment. She is now limited to sedentary work, and wakes up two or three times every night because of pain. She has swelling and weakness in the arm, and cannot engage in sports or yard work; she is limited to light housekeeping.
Claimant is 56 years old and received eight years of education in Germany; she taught herself to read, write and speak English after she arrived in this country. Most of her work experience has been in retail sales, but after she was injured she was unable to find work in this area. She could not do the lifting and reaching required for a return to her job with this employer, and she has no office skills. She stated that she would be unable to return to retail sales even if she could find work because of her reaching and lifting restrictions, and she is unaware of any other type of work she could perform in light of her physical and educational limitations.
Attorney(s) - Plaintiff --Vernon C. Jolley, Riverside, California
Attorney(s) - Defense --Theodore E. Kanell of Plant, Wallace, Christensen & Kanell
Facts/Contentions --The ALJ issued a tentative finding of permanent and total disability in this case and ordered employer/carrier to commence subsistence payments to claimant pending a final ruling. Employer/carrier moved for review, contending that the medical evidence did not support a finding of permanent and total disability. The Commissioner noted that all the testimentary and documentary evidence submitted at the hearing came from claimant, her witnesses and her treating physicians.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --Gary L. Phelps vs. B F I and American Home Insurance
Case Number --2001958
Court/Judge --Eblen
Verdict/Settlement --Order, 9/03
Amount --The ALJ concluded that the opinions of the medical panel and Dr. Harris that the degenerative processes in claimant’s knee accelerated after his industrial accident were inconsistent with his prior medical records, which showed that significant ongoing degenerative changes were discovered during each of claimant’s three previous surgeries. The ALJ concluded that the medical panel failed to provide an adequate explanation of its conclusions about the industrial necessity of the proposed total knee replacement; the ALJ therefore declined to be bound by the medical panel’s report and instead adopted Dr. Knoebel’s findings and his opinion that no further medical care is necessary to treat claimant’s industrial injury. The ALJ therefore dismissed the claim for additional medical benefits to cover the recommended surgery with prejudice. The ALJ noted that because he did suffer an industrial injury, claimant should have received $5,437.49 in temporary total disability benefits from employer/carrier, and employer/carrier is entitled to an offset in this amount against any future award of benefits in this case.
Injuries --Claimant suffered a medial meniscal tear in his left knee, which was repaired arthroscopically. He had a pre-existing meniscal tear and two prior surgeries, and the current tear was described as degenerative; claimant also had osteoarthritis with Grade III chondritis of the medial femoral condyle, medial tibia plateau and lateral femoral condyle of the left knee. Dr. Harris gave claimant a 9% whole-person impairment rating for joint space narrowing of the medial compartment and for the partial medial meniscectomy, noting that claimant was at significant risk for experiencing progressive arthritis of the knee and ultimately requiring a total knee replacement. Dr. Knoebel gave claimant an 11% whole-person impairment rating for his pre-existing knee condition and a 1% related whole-person impairment rating for the industrial aggravation of the pre-existing injury.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Expert Witness(es) - Plaintiff --Dr. Leslie Harris--treating surgeon
Expert Witness(es) - Defense --Dr. Richard Knoebel--independent medical examination physician; Dr. Stack. Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Glenn Momberger--chair; and Dr. Nathan Momberger.
Facts/Contentions --Claimant worked for employer as a garbage truck driver who also emptied dumpsters. He had to pull the dumpsters out to pick them up with his truck and was also required to clean his truck at the end of every shift. When he emptied a dumpster containing cans of paint, he stated, the paint splashed on his truck, and while he was cleaning it off at the end of his shift, he slipped and fell off the ladder, striking his left knee on the pump box and hitting the ground in such a way as to twist the knee. He reported the incident three days later and sought treatment. Dr. Harris eventually recommended a total knee replacement, stating in his report that the industrial accident and the third surgery caused a cascade of effects leading to this development.
Employer/carrier did not dispute that the incident occurred, but argued on the basis of Dr. Knoebel’s findings that claimant’s knee problems were degenerative and pre-existing, and that the total knee replacement was not medically necessary to treat claimant’s industrial injury.
The medical panel found that claimant suffered an industrial injury in the fall from which he has not stabilized medically; the panel opined that a determination of permanent impairment was therefore not appropriate until claimant does stabilize medically. The panel also found that the recommended total knee replacement was medically necessary to treat both the pre-existing condition and the industrial injury.
Employer/carrier objected to the medical panel’s report on several grounds. The panel responded in writing that causation is difficult to ascertain, and that the panel carefully reviewed claimant’s medical history as well as performing a physical examination of claimant. The medical panel acknowledged that it overlooked Dr. Stack’s handwritten notes taken prior to claimant’s industrial accident; however, the panel added, these notes were not helpful because they were non-specific, containing mention of crepitation and symptoms in the left knee and mentioning arthritis in a general way but not detailing any definite findings. The panel noted that it is not possible to treat only the medial compartment of claimant’s knee any longer, and arthroplasty is the only clinical choice; the aggravation of the re-existing injury has had a devastating effect on claimant’s life. The panel revised its report to find that 50% of claimant’s permanent impairment was industrial and 50% was non-industrial. Employer/carrier again objected to the medical panel’s revised report. The ALJ noted that the panel failed to explain specifically how the accident and concomitant third surgery caused a significant change in claimant’s condition. The ALJ also noted that an ALJ is not bound to accept a medical panel’s report if other substantial conflicting evidence in the case supports a contrary finding.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Jeffrey Dalegge vs. Hadco Construction and/or Workers’ Compensation Fund
Case Number --200391
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 9/03
Amount --The ALJ dismissed this claim without prejudice.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Hans M. Scheffler
Facts/Contentions --Claimant sought additional temporary total and permanent partial disability benefits, but failed to provide additional medical evidence to support his claim at the hearing.
Employer/carrier contended that they paid claimant temporary total disability benefits for the time he was off work, and also paid him for a 4% related whole-person impairment according to Dr. Moress’s determination. Claimant conceded that employer/carrier paid him these benefits and further admitted that he had no additional medical evidence to support a claim of more time lost from work or further industrial impairment.

REPETITIVE STRESS INJURY
Case Type --WA, SI; Work-related repetitive stress injury
Case Name --Darcie Mumme vs. Western States/Legacy House and/or Workers’ Compensation Fund
Case Number --20021144
Court/Judge --George
Verdict/Settlement --Order, 9/03
Amount --The ALJ found that claimant proved she was capable of doing her former work by continuing to do it after she sought treatment, thereby disproving her claim for additional temporary total disability benefits. The ALJ found that even if, as she claimed, she was released to light duty work after her injury, claimant demonstrated the ability to surpass those restrictions by doing her work without accommodations. The ALJ also concluded that since employer did not receive a copy of the doctor’s release to return to work and also since they had already terminated claimant for absence/tardiness, they could not be faulted for not calling claimant back to work after her surgery. The ALJ therefore dismissed the claims for additional benefits with prejudice. However, the ALJ ordered employer/carrier to pay claimant accrued temporary total disability benefits of $2,628.60 plus interest and less attorney’s fees for the time she was totally disabled after her injury. Credit is to be allowed employer for the $2,000 already paid, 8% p.a. interest added to the balance owing, and attorney’s fees deducted from this award and paid directly to claimant’s attorney.
Injuries --Claimant suffered an injury to her left wrist. She underwent arthroscopical debridement of a left triangular fibrocartilage complex tear and Feldon wafer resection of the left ulnar head.
Attorney(s) - Plaintiff --K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense --Hans M. Scheffler
Expert Witness(es) -- Plaintiff --Dr. Vanderhooft
Damages --Employer/carrier paid claimant $2,000 in temporary total disability compensation; $10,171.87; $990 in vocational rehabilitation assistance; and $1,248 for the 2% related whole-person impairment assessed by Dr. Vanderhooft.
Facts/Contentions --Claimant worked as a server, providing water for residents; taking their food orders, relaying them to the kitchen and serving them; and clearing and wiping the tables after residents had eaten; she also prepared fruits and desserts for the residents. She testified telephonically at her hearing that she was injured when she twisted her left wrist while lifting a tub of dishes. She said she was thereafter unable to lift a rack of glasses down from a shelf, and her left wrist began to hurt. She sought medical treatment the same day and was restricted to no lifting over 10 pounds with the left hand; she was also told to use a splint at work. She did not testify that she provided the work release to her employer. She returned to work the day after she sought medical care and apparently carried out all her job duties successfully, including the lifting down of racks of glasses from shelves. After being terminated, she sought further treatment and eventually underwent surgery.
Employer/carrier stated that claimant was terminated for cause (absence/tardiness problems) approximately eleven days after she sought treatment; she had then been working for employer for three and a half weeks. Claimant argued that employer/carrier owed her further temporary total and temporary partial disability benefits because they failed to offer her light duty work after her surgery. She claimed her doctor released her to light duty work only. Her doctor stated that the note he gave her was a release to full duty work. A representative from claimant’s employer said it is company policy to have other workers injured assist employees with their work duties; she added that the company would have done so for claimant, but claimant never asked for such assistance. She was excused from loading dishes into the dishwasher or rinsing them while her arm was in a cast.
Claimant worked for Convergys for three weeks after she was terminated from her job with this employer, and stated that she quit because of pain in her left wrist. She later worked briefly at Smith’s as a bagger, and stated at the hearing that she quit because her husband was being transferred to Texas; however, she admitted on cross-examination that she really quit because she was dissatisfied with the small amount of money she was making.

REPETITIVE STRESS INJURY
Case Type --WA, SI, OD; Work-related repetitive stress injury, occupational disease claim
Case Name --John Ernest Pfeiffer vs. Weir Specialty Pump/Envirotech Pump; Twin City Fire Insurance/Hartford/Travelers; AIG Insurance; and Zurich American Insurance
Case Number --2002439
Court/Judge --Eblen
Verdict/Settlement --Order, 9/03
Amount --The ALJ found claimant has an occupational disease caused in part by his work activities and in part by the surgery to remove the ganglion cyst, which damaged an artery in his wrist. Since no other physician apportioned causation, the ALJ accepted Dr. Knorpp’s apportionment of 50% industrial to 50% non-industrial. However, the ALJ noted, the Utah Occupational Disease Act does not make any mandate about apportionment of liability among multiple insurance carriers for a single employer. The ALJ therefore adopted the reasoning provided by the Utah Supreme Court in Duane Brown Chevrolet Company vs. Industrial Commission and Mountain states Steel vs. Industrial Commission, and found that in the absence of any authority under which the Commission might apportion liability among multiple carriers, the last insurance carrier should be liable for the entire claim. The ALJ ordered Weir/Travelers to pay claimant $1,251.57 in accrued temporary total disability benefits; $2,103.75 in accrued permanent partial disability benefits for his 3% related whole-person impairment; and all related medical and travel expenses. Accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney.
Injuries --Claimant suffered an injury to his right hand and was diagnosed with hypothenar hammer syndrome. He underwent right carpal tunnel release surgery and had a recurrent wrist ganglion removed, along with surgical exploration of the right palmar cutaneous nerve to fix scar tissue around the radial artery. After this surgery, he began experiencing pain, tingling, weakness and numbness in his left wrist. Dr. Harris gave claimant a 5% right upper extremity impairment rating secondary to peripheral vascular disease, noting that claimant lost his job because of the restrictions due to his arterial insufficiency, which Dr. Harris felt was caused by work activities. Dr. Knorpp felt claimant’s problems were caused in equal part by pre-existing defects and work activities.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --For Twin City/Hartford/Travelers: Theodore E. Kanell of Plant, Christensen & Kanell; for AIG: Mark R. Sumsion of Richards, Brandt, Miller & Nelson; for Zurich American: Thomas C. Sturdy of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Harris--treating physician
Expert Witness(es) - Defense --Dr. Scott Knorpp--independent medical examination physician
Facts/Contentions --Claimant worked for employer as a machinist for 16 years; during that time his employer had three different workers’ compensation insurance carriers. Claimant contended that his work activities caused his injury or occupational disease.
Employer’s insurers disputed the apportionment of liability among them. Hartford argued that it received no notice of an industrial accident or occupational disease claim during the time it covered employer; AIG asserted that there was some non-industrial causal contribution to the injury; and all the carriers contended that claimant’s arterial problems were caused by a non-industrial surgery performed in 1996. AIG argued that Zurich American, as the last insurance carrier, should bear all the responsibility for treating any industrial injury or occupational disease under the “last injurious exposure” rule (this rule states that if an employee develops an occupational disease after he has been working for a single employer for over a year, that employer is liable for the entire cost of treating the disease). Zurich American contended that claimant suffered no injurious exposure during the time period when Zurich American covered claimant’s employer.

FALL
Case Type --WA, SF; Work-related fall
Case Name --(Name of case withheld)
Case Number --20011041
Court/Judge --Eblen
Verdict/Settlement --Order, 9/03
Amount --The ALJ adopted the medical panel’s findings and ordered self-insured employer to pay claimant $7,129.81 in accrued temporary total disability benefits (in addition to those employer has already paid); $9,247.68 in accrued permanent partial disability benefits for her 13% related whole-person impairment; and all related medical expenses, including those for the physical therapy on claimant’s thoracic spine but excluding those for psychiatric treatment, treatment of the shoulder, and treatment of the alleged traumatic brain injury. Accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney.
Injuries --Claimant suffered a traumatic brain injury (disputed) and a cervical spinal injury (disputed). She underwent fusion surgery on her cervical spine.
Attorney(s) - Plaintiff --Richard Burke of King, Burke & Schaap
Attorney(s) - Defense --Brad C. Betebenner of Richards, Brandt, Miller & Nelson
Expert Witness(es) --Because of the extreme amount of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Alvin Wirthlin--neurologist; and Dr. Glenn Momberger--orthopedist.
Facts/Contentions --Claimant worked for employer as a cake decorator. She went into a walk-in freezer to get a box of cake from a shelf, climbed a 2-step ladder with a curved handle on the front to reach the box, fell backwards off the ladder approximately 2 feet to the ground, and struck the left side of the back of her skull, lacerating her scalp. The ALJ found there was insufficient evidence in the medical record to show whether claimant lost consciousness after falling.
Self-insured employer contended that shortly after the incident, a manager arrived and asked claimant, “What is the date?” and “What happened?” The manager said claimant was able to answer both questions accurately. However, she sought follow-up care later, claiming that she was having difficulty maintaining her train of thought as well as finding words. She stated that she was dizzy and irritable, and had trouble with short-term memory, neck pain, and shoulder pain. An MRI revealed a disc bulge at C5/6 causing effacement of the CFS signal.
Dr. Rhee and Dr. Goodrich felt claimant sustained a traumatic brain injury in the fall; Dr. Newbold, Dr. Schmidt, Dr. Knippa, Dr. O’Connell and Dr. Barbuto felt she did not. Dr. Hart was not sure whether claimant’s problems stemmed from a head injury or from other causes. Employer pointed out that claimant had a prior anxiety disorder and argued that she had major non-industrial psychological problems and was malingering concerning the effects of her industrial fall.
The medical panel concluded that claimant’s only injury that was medically documented in relation to the industrial fall was a closed head injury with occipital laceration and an aggravation of claimant’s cervical spondylosis with the appearance of cervical radiculopathy. The panel found no evidence of traumatic brain injury caused by the fall. The panel concluded that claimant’s psychological condition predated the fall, and the psychiatric care she received was not medically necessitated by her industrial accident, but the physical therapy she received for her neck pain was medically necessitated by her industrial accident. The panel concluded that the medical treatment of the right shoulder injury was not necessitated by the industrial accident. The panel found claimant reached medical stability six months after her surgery and had a 13% related whole-person impairment. The panel felt no further medical treatment was necessary for claimant’s industrial injury.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Brian Thompson vs. Dennis Galvin dba Drain One; and the Uninsured Employers’ Fund
Case Number --2003100
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 9/03
Amount --Finding that claimant failed to submit evidence proving a causal relationship between his industrial accident and his left ankle sprain, the ALJ dismissed his claim with prejudice.
Injuries --Claimant suffered a sprained left ankle.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Uninsured employer was represented pro se; the UEF was represented by Lori Lima.
Facts/Contentions --Claimant sought medical benefits for the treatment of his sprained left ankle, contending that he sprained it at work.
Employer denied that the alleged industrial accident caused claimant’s sprained ankle. The physician’s first report of work injury made no comment on the causal relationship, if any, between the reported accident and claimant’s sprained ankle, and the summary of his medical record completed by Dr. Kim Heaton denied that there was any medical causal relationship between the alleged industrial accident and the ankle sprain.

SLIP
Case Type --WA, SF; Work-related slip
Case Name --Arlene Andus vs. Granite School District (self-employed)
Case Number --20021118
Court/Judge --Eblen
Verdict/Settlement --Order, 9/03
Amount --The ALJ adopted the medical panel’s findings and concluded that claimant has been paid all the benefits to which she was entitled by her industrial injury. The ALJ found no further benefits were due and payable; the ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered a left shoulder injury. She underwent physical therapy and two series of trigger point injections and eventually underwent a posterior foramenotomy at C3/4 left and C4/5 bilaterally. The postoperative diagnosis was cervical spondylolysis with foraminal narrowing at C3/4 left and C4/5 bilaterally. An MRI of the left shoulder after this surgery revealed minimal deltoid bursitis and prominent medullary venous channels with a proximal left humerus. Claimant then underwent an anterior cervical discectomy and fusion at C5/6 and C6/7 with plating. Claimant had received prior treatment for a herniation at C4/5 right and C5/6 bilaterally.
Attorney(s) - Plaintiff --Marsha Atkin of Atkin & Associates
Attorney(s) - Defense --Thomas C. Sturdy of Blackburn & Stoll
Expert Witness(es) --This case was referred to a medical panel consisting of Dr. Edward Holmes.
Facts/Contentions --Claimant worked at Taylorsville High School. She was up on a 30-foot ladder changing light bulbs in the gymnasium. When she attempted to slide the plexiglas off the scoreboard, it came off its track and slid toward claimant, who grabbed it but could not stop it. The plexiglas, which was wider than claimant could reach with both arms extended and weighed about 50 pounds, fell and broke when it hit the ground, and the co-worker who had been holding the ladder steady for claimant left to go and look at it. Claimant said the ladder began to slip and she panicked and grabbed the casing of the scoreboard, which apparently caused the ladder to stop slipping. The basketball team and three coaches, who all saw the incident, asked claimant if she was all right, and she said she was feeling shaken up. About two hours later, claimant said, she began to feel a knifelike pain in her left shoulder above the scapula, along with a tingling numbness. She sought treatment that afternoon and was sent for physical therapy. She received further treatment and diagnostic medical care after her pain returned and worsened four months later. Dr. Fotheringham felt the most likely diagnosis was musculoligamentous sprain/strain involving the trapezius, levator and rhomboid muscles. Dr. Knorpp felt she suffered from recurrent shoulder strain secondary to the work injury. An MRI revealed extensive degenerative disc disease in the cervical spine near the shoulder C4/5, C5/6 and C6/7). Dr. Sanders took claimant off work completely a year and nine months after she was injured and before her surgery. She sought further benefits for additional medical treatment of the pain she claimed was caused by her industrial injury.
A connection existed between claimant’s continuing shoulder pain and her industrial accident, noting that she had a prior history of a C5/6 herniation on the right and a previous neck/shoulder injury in 1994.
The medical panel concluded that claimant’s pain resulted from her previous injury in 1994 and from her degenerative disease, and not from her industrial accident. The panel found no causal connection between claimant’s industrial accident and her continuing neck and shoulder pain.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Cindy Decker vs. Goer West Manufacturing and Ohio Casualty Group
Case Number --2002501
Court/Judge --Marlowe
Verdict/Settlement --Order, 9/03
Amount --The ALJ dismissed this claim without prejudice.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Thomas C. Sturdy of Blackburn & Stoll
Facts/Contentions --After claimant filed her request for a hearing, employer/carrier filed a motion to dismiss, contending that all benefits due claimant had been paid. The ALJ required claimant to file an answer to the motion, if she disagreed with it, by 9/23/03. If claimant failed to respond to the motion or to reply to the ALJ’s requirement, the ALJ notified claimant, the ALJ would dismiss the claim.

NONCOMPLIANCE ASSESSMENT
Case Type --NC; Noncompliance action
Case Name --In the matter of the noncompliance of Kirt Kynaston dba American Curb
Case Number --102121982239
Court/Judge --Eblen
Verdict/Settlement --Order, 9/03
Amount --The ALJ accepted the Industrial Accidents Division’s agreement to reduce the penalty it assessed and ordered Kynaston to pay a penalty of $5,093.88 to the Uninsured Employers’ Fund.
Attorney(s) - Plaintiff --Kynaston was represented pro se.
Attorney(s) - Defense --For UEF: Lori Lima
Facts/Contentions --The Industrial Accidents Division of the Labor Commission found that Kynaston dba American Curb failed to maintain workers’ compensation insurance on his employees for a period of two years, two months and five days. Utah law states that such failure to insure workers against on-the-job injury is a Class B misdemeanor, and each day’s failure to comply is a separate offense. The penalty is $1,000 or three times the premium the employer would have paid for workers’ compensation insurance. The premium is calculated by multiplying 150% of the state’s average weekly wage by the highest number of workers employed during employer’s period of noncompliance, and then multiplying that figure by the number of weeks of noncompliance, up to a maximum of 156, using the highest-rated employee class code applicable to the employer’s operations. The Industrial Accidents Division calculated a penalty of $11,889.20 against Kynaston on this basis, determining that the highest number of employees he retained during the period of his noncompliance was two and their highest employee class code was 5221 (concrete flatwork only).
Kynaston appealed the penalty, asserting that during the period of his noncompliance he hired only one part-time employee who was paid on a piece-meal basis according to the number of feet of curbing installed. Kynaston did not dispute his noncompliance, but asserted that he as owner of the company signed a waiver of coverage waiving claims to workers’ compensation insurance. Kynaston could not provide any pay records to prove his assertions because he paid in cash or by personal check; however, the Industrial Accidents Division agreed at his hearing to reduce the penalty, which was originally assessed for two employees, to an assessment for one employee. The ALJ noted that 150% of the state’s average weekly wage during the period of Kynaston’s noncompliance was $831.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Amie Overby vs. Peter Sundwall, MD and Workers’ Compensation Fund
Case Number --2001297
Court/Judge --Eblen
Verdict/Settlement --Order, 9/03
Amount --The ALJ found the medical panel’s finding that the fusion surgery was unnecessary to be inconsistent with its opinion that claimant’s current situation, post-fusion, was the direct result of her industrial accident, and her ongoing medical care expenses and impairment benefits should be paid by employer/carrier. The ALJ found that the panel failed to provide an adequate explanation of the medical causal link between the industrial accident and claimant’s current situation in light of her intervening pregnancy and the unnecessary fusion surgery. The ALJ therefore declined to accept the medical panel’s report in its entirety. Instead, she accepted its conclusion that the fusion surgery was unnecessary and then adopted from the medical record Dr. Fotheringham and Dr. Knoebel’s conclusions that claimant stabilized medically before her fusion surgery and sustained no permanent impairment from her industrial accident, since the stabilization date and the impairment the panel assessed were based on the fusion surgery. Since she stabilized medically from her industrial accident before her fusion surgery, and since employer/carrier paid benefits through the date on which she stabilized, the ALJ found employer/carrier does not owe claimant any further benefits. The ALJ therefore dismissed this claim for further benefits with prejudice.
Injuries --Claimant suffered a herniated disc at L5/S1 without nerve root impingement; she underwent epidural injections and physical therapy, and when she did not obtain relief she eventually underwent a total laminectomy at L5; excision of a large midline disc at L5/S1; and interbody fusion at L5/S1 with threaded Ray cages and bone autograft. When her pain continued, she underwent nerve root blocks. Radiofrequency lesioning has been recommended by a treating physician.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --Lori Hansen
Expert Witness(es) --Because of conflicting medical testimony, the case was referred to a medical panel consisting of Dr. Glenn Momberger--orthopedist.
Facts/Contentions --Claimant stated that she was injured while working as a nurse in Dr. Sundwall’s office, when she caught the leg of a 300-pound quadriplegic patient as it fell out of the stirrup on an examining table. Dr. Sundwall provided medical care and recommended that claimant file a workers’ compensation claim. Claimant sought additional care upon referral by Dr. Sundwall and underwent a CT scan and two MRIs of her lumbar spine.
Employer/carrier accepted that the accident occurred and also accepted liability, but contended that they had already paid all the benefits to which claimant was entitled and disputed the necessity for the fusion surgery. Employer/carrier relied on its medical evaluation physicians’ opinion in arguing that claimant’s continuing back and leg pain was caused by degenerative changes in the spine and was therefore non-industrial in origin.
The medical panel concluded that there was a medical causal relationship between claimant’s industrial accident and her continuing pain; however, the panel felt the fusion surgery claimant received was not necessary to treat these problems. The panel opined that in view of claimant’s symptoms prior to the surgery, a minimally invasive procedure such as a partial discectomy would have been prudent. The panel concluded, however, that claimant’s current situation, post-fusion, was the direct result of her industrial accident, and her ongoing medical care expenses and impairment benefits should be paid by employer/carrier. By way of future treatment, the panel recommended pain management, including injection therapy, as appropriate, and felt claimant’s facet joints should be examined as a possible pain generator. If the facet joints are found to be a pain generator, the panel felt claimant should see an independent spine surgeon. The panel found claimant became medically stable seven months after the fusion surgery and awarded her a 13% related whole-person impairment rating.

ORDER ON MOTION FOR REVIEW
Case Type --WA, OD; Work-related injury, occupational disease claim
Case Name --Larry Allen Vigil vs. Allen Steel Company, Incorporated
Case Number --020202
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 10/03
Amount --The Labor Commissioner found ample evidence that the claim against Four Four Pipeline was confused with the earlier claim against Allen Steel. The Commissioner concluded that when the ALJ dismissed the claim against Allen Steel, he intended to dismiss the claim against Four Four Pipeline; the record contained no basis for dismissal of the claim against Allen Steel. The Commissioner therefore reinstated the claim against Allen Steel. Because the ALJ who issued the dismissal has resigned, the Commissioner will assign this case to another ALJ.
Injuries --The claim against Allen Steel concerned injuries alleged to be from exposure to toxic fumes. The claim against Four Four Pipeline concerned back injuries.
Attorney(s) - Plaintiff --Jay L. Kessler of Kessler Law Office
Attorney(s) - Defense --Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Facts/Contentions --The Labor Commissioner found that claimant first requested a hearing on a claim against Allen Steel for exposure to injurious toxic fumes which claimant alleged occurred in June of 2001. The Labor Commission assigned the claim a case number and assigned it to an ALJ. Allen Steel answered the claim by denying liability and moving for dismissal on grounds that the application lacked medical documentation. The ALJ did not issue a ruling on the motion to dismiss, and Allen Steel did not pursue the matter. Claimant then filed a second application for a hearing in connection with back injuries he allegedly suffered while working for Four Four Pipeline Company in 1999. The Commissioner found that even though this application differed from the first in terms of employer, type of injuries claimed, and date and nature of accident, this application was not given its own case number, but instead was placed in the existing case file relating to the earlier claim. The ALJ wrote claimant’s attorney in January of 2003 regarding the claim against Four Four Pipeline; however, the ALJ referenced the case number of the claim against Allen Steel. In his letter, the ALJ pointed out that the claim against Four Four Pipeline did not include necessary information. The ALJ asked the attorney to discuss the matter with his client and then respond. The Commissioner found that this letter constituted the only documentation in the record of any Commission request to claimant for more information. On April 1, 2003 the ALJ dismissed the claim against Allen Steel on grounds that claimant had failed to respond to the Commission’s request for more information. Claimant requested a review of the ALJ’s order.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --(Name of case withheld)
Case Number --2001363
Court/Judge --Hann
Verdict/Settlement --Order, 10/03
Amount --The ALJ declared claimant to be in default and dismissed her claim with prejudice.
Injuries --Claimant suffered neck and back injuries.
Attorney(s) - Plaintiff --Claimant’s attorney withdrew at her request prior to the hearing.
Attorney(s) - Defense --Dori K. Petersen of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Bowen; Dr. Rose; Dr. Colledge; Dr. Rosenthal
Expert Witness(es) - Defense --Dr. Scott Knorpp--independent medical evaluation physician
Damages --Employer/carrier paid claimant workers’ compensation benefits for this injury.
Facts/Contentions --The ALJ found the following: Claimant was injured by accident in the course and scope of her employment at employer’s health care center, and employer paid benefits. Claimant was released to return to full duty work a month after she was injured. After review of an MRI of the cervical spine, claimant was declared to be medically stable two months after that date, and her health care providers determined that she might receive follow-up care as needed. Seven months later claimant returned to Dr. Bowen with strains of her lumbosacral spine and quadriceps muscles and received conservative treatment. Nearly two years after that time she returned to Dr. Bowen with complaints of cervical and lower back pain and was treated conservatively; she was referred to a pain clinic five months later. The pain management clinic documented non-compliance issues and concerns that claimant was obtaining additional pain medication from other providers. Claimant was diagnosed with a personality disorder within three months of this notation. Claimant was discharged from the pain clinic three weeks after this diagnosis, with a notation that she was likely malingering in order to obtain disability benefits and probably had substance abuse issues. A month later, claimant’s treating physician expressed concern over the lack of pathology to support claimant’s complaints of continuing back pain and stated that he would no longer prescribe additional pain medication. Claimant then sought treatment with Dr. Colledge, who noted non-compliance and chronic drug-seeking. Dr. Rosenthal, who was treating claimant on referral from Dr. Colledge, attempted to restrict claimant’s dependence on narcotic pain medication due to concerns about addiction and her diagnosis of psychogenic pain. When Dr. Rosenthal refused claimant any additional Lortab, claimant did not return for further treatment. Dr. Knorpp performed an independent medical evaluation three and a half months before Dr. Rosenthal made this refusal and concluded that claimant was medically stable following her treatment and release by Dr. Bowen and did not need any further treatment for her industrial injury. Dr. Knorpp attributed claimant’s complaints of pain to her ongoing psychological condition. The ALJ found no medical causal connection between claimant’s industrial injury and her request for additional medical care.
Claimant retained counsel at about the same time that Dr. Rosenthal refused to prescribe any more Lortab for claimant. A hearing on this claim was scheduled, and then re-scheduled for seven months later at the parties’ request. Prior to that hearing, claimant requested that her attorney withdraw from the case and that the hearing be re-scheduled again, and the hearing was re-scheduled for four months later. The Commission sent notice of the hearing to claimant at her last known address, but claimant telephoned employer/carrier’s attorney the week before the hearing and said claimant would not attend the hearing. Claimant was not present at the hearing, and the ALJ issued the above findings from evidence presented by employer/carrier at the hearing.

ORDER ON MOTION FOR REVIEW
Case Type --WA; Work-related injury
Case Name --George W. Pierce vs. Patterson Drilling and Clareton National Insurance Company
Case Number --020027
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 10/03
Amount --The Commissioner found claimant’s admission that his blood alcohol level exceeded 0.08 grams was consistent with his description of his activities the night before he was injured. The Commissioner concluded that claimant’s admission of intoxication was sufficient to trigger the Utah Code Annotated Section 34 A-2-302(4)(a)’s presumption that alcohol was the major contributing cause of his injury. The Commissioner noted that application of Utah Code Annotated’s presumption that alcohol was the major cause of the injury remains contingent on a determination that his employer “permitted, encouraged, or had actual knowledge” of claimant’s intoxication, since claimant’s supervisor was in the party that was drinking the night before. The Commissioner therefore remanded the case to the ALJ for further consideration of these matters. On remand, the Commissioner noted, the ALJ “may conduct an additional hearing and take any other action she finds necessary to resolve the remaining issues of this case.”
With regard to employer’s contention that claimant was suffering from marijuana intoxication, the Commissioner noted that Utah Code Annotated Section 34 A-2-302(4)(b)(iii) specifically provides that any such presumption is rebutted if “the concentration of total urinary cannabinoids is less than 50 nanograms/ml.” In this case, since the concentration of urinary cannabinoids in claimant’s urine was only 15 nanograms/ml, the Commissioner found that the evidence was insufficient to trigger a presumption of marijuana use.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --Mark D. Dean of Blackburn & Stoll
Facts/Contentions --Claimant was injured in the course and scope of his employment on a drill rig. His employer denied benefits under Section 34 A-2-302(4)(a) of the Utah Code Annotated, which states that if an employee is proven to be intoxicated on alcohol or drugs at the time of injury, alcohol or drug intoxication is presumed to be the major contributing cause of the injury, and the employer is not liable for workers’ compensation benefits. Employer/carrier contended that at the time he was injured, claimant was intoxicated on both alcohol and cannabis.
Claimant stated at his hearing that he and a group of company employees, including his supervisor, had been out drinking until late the night before claimant was injured, and claimant had almost no sleep before heading out to the rig to go to work. Claimant also admitted light recreational use of marijuana before his injury. However, he contended that he was not intoxicated on either substance at the time of his injury. He admitted through counsel that his blood alcohol level was over 0.08 grams at the time of his injury, but claimed that this admission by itself was not enough to prove intoxication. He further claimed that under the law, the presence of his supervisor in the drinking party constituted proof that his employer “permitted, encouraged, or had actual knowledge” of his intoxication, which would render the employer liable for benefits even if intoxication was the major contributing cause of his injury.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --John Ormond vs. Ormond Construction Company, Incorporated and/or Workers’ Compensation Fund and/or Employers’ Reinsurance Fund
Case Number --2000154
Court/Judge --George
Verdict/Settlement --Order, 10/03
Amount --The ALJ found claimant failed to prove he is permanently and totally disabled and dismissed his claims with prejudice.
Injuries --Claimant suffered low back injuries and underwent a discectomy at L4/5; he was awarded a 10% related whole-person impairment rating by Dr. Chung, who did not change his work status except to warn him to avoid heavy lifting.
Attorney(s) - Plaintiff --Michael E. Bostwick of Babcock, Scott & Babcock
Attorney(s) - Defense --For employer/carrier: Lori Hansen; for ERF: Deidre Marlowe; then Lori Lima
Expert Witness(es) - Plaintiff --Dr. Houden
Expert Witness(es) - Defense --Dr. Michael Chung
Damages --Employer/carrier paid claimant $8,317.14 in temporary total disability benefits, permanent partial disability benefits for his 10% related whole-person impairment, and $18,058.78 in medical expenses.
Facts/Contentions --Claimant, who was a mechanic and shop foreman, was injured on 3/15/90. Employer/carrier accepted liability and paid benefits, but declined to pay further benefits when claimant contended that he was permanently and totally disabled. Claimant is 45 years old and a high school graduate; he has never worked anywhere else than his family’s business, doing heavy construction, equipment operation and shop work maintaining the equipment. He stated that he is now restricted to light work, and that he can sit or stand only for brief periods of time. He said he sometimes requires pain medication, which makes him drowsy and interferes with his ability to operate machinery or drive. He failed to qualify for Social Security disability benefits. Claimant said he and his brothers each owned a share in the family company until seven months after he was injured, when a process was begun to divest him of his share. Claimant said he stopped working when the process of divestiture began; the process was not complete as of the date of his hearing. Claimant said he does not get along with his brothers and there is no chance that the company would re-hire him. No doctor has taken claimant off work, and employer/carrier presented evidence that a two-day functional capacity evaluation showed claimant was capable of at least light-physical-demand work. Claimant did not present any medical evidence indicating that any further treatment was needed or recommended. He did not present any evidence of unpaid medical expenses with the exception of one prescription from Dr. Houden. He did not present any evidence of time lost from work for which he was not paid.

FALL
Case Type --WA, SF; Work-related fall
Case Name --Ivan Mikhaylyuk vs. Bargain Properties LLC and Uninsured Employers’ Fund
Case Number --2002125
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 10/03
Amount --The ALJ found that claimant was an employee of uninsured respondent employer, and no evidence was presented showing that employer was insolvent or otherwise unable to pay benefits due claimant. The ALJ therefore dismissed the UEF from the action and ordered employer to pay claimant accrued temporary total disability benefits of $6,721.12 plus interest, as well as ongoing temporary total disability benefits of $272 per week until claimant either attains medical stability or returns to work. The ALJ further ordered employer to pay claimant’s related medical and travel expenses.
Injuries --Claimant suffered acute multiple rib fractures; a clavicle fracture; a pulmonary contusion; several transverse process fractures; and an acute closed head injury.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --For employer: Dennis K. Poole of Poole & Adams; for UEF: Sherrie Hayashi; then Lori Lima
Expert Witness(es) - Plaintiff --Dr. Peter Taillac--treating physician
Expert Witness(es) - Defense --Dr. Joel Dall--independent medical valuation physician
Facts/Contentions --Claimant was injured when he fell eight feet from a ladder to the ground while doing some work on a house Bargain Properties was remodeling. Claimant was knocked unconscious and taken by ambulance to a local hospital, where he remained for several days. None of the doctors involved indicated that he has reached medical stability, and he had not returned to work by the date of his hearing.
Uninsured employer contended that claimant was an independent contractor and was never an employee of Bargain Properties.
Claimant stated that he was hired by Grigory Calagain and Val Grigorian hired him to work on the house for Bargain Properties; he said Calagain instructed him as to the details of the remodel and provided all the material necessary for the job. He said he partnered with Pavil Borisov to do the work, and the two men agreed to split the $1,800 fee; he and Borisov stated that no one from Bargain Properties ever asked either of them for proof of workers’ compensation insurance coverage. Borisov produced a note signed by Grigorian and stating, “Pavel [sic] Borisov works for Bargain Properties since 09/20/02 as a remodel specialist. He is self-employed with Bargain Properties LLC.”

FALL
Case Type --WA, SF; Work-related fall
Case Name --Richard A. Koryta vs. Smith’s Food and Drug Centers
Case Number --200295
Court/Judge --Eblen
Verdict/Settlement --Order, 10/03
Amount --The ALJ noted that her instruction to the medical panel was broad and allowed the panel to perform any additional diagnostic tests deemed necessary to evaluate claimant’s condition and its cause(s). In her instructions to the panel, the ALJ stated, “Permanent impairment should be determined pursuant to the Fourth Edition AMA Guides and Utah’s 2002 Impairment Guides.” Since the panel noted a significant change in claimant’s level of impairment since his prior impairment ratings were determined, the ALJ concluded that the panel acted correctly in calculating a new impairment rating. The ALJ therefore accepted the medical panel’s findings and ruled that claimant’s deep vein thrombosis resulted from treatment of his industrial injury. The ALJ ordered self-insured employer to pay claimant $12,361.44 in permanent partial disability benefits for an additional 14% related whole-person impairment, in addition to the impairment benefits they have already paid him. Employer must also pay all related medical expenses, including those for treatment of the deep vein thrombosis. Accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney.
Injuries --Claimant suffered a tibial plateau fracture; when the fracture did not heal properly, he underwent a total knee replacement. He was subsequently diagnosed with deep vein thrombosis. The medical panel gave claimant a 36% related whole-person impairment rating for his condition, with 20% stemming from the total knee replacement and the other 16% related to the deep vein thrombosis.
Attorney(s) - Plaintiff --Randall G. Phillips of the Phillips Law Office, Ogden
Attorney(s) - Defense --Henry K. Chai II of Blackburn & Stoll
Expert Witness(es) --The parties agreed by stipulation to waive a hearing and refer the issue of the medical causation of the deep vein thrombosis to a medical panel consisting of Dr. Craig Wilkinson--vascular surgeon; and Dr. Dennis Gordon--orthopedic surgeon.
Facts/Contentions --Claimant was injured when he fell off a pallet jack and injured his right knee.
Self-insured employer accepted liability and paid benefits, but declined to pay for the medication to treat the deep vein thrombosis, arguing that this condition was not caused by claimant’s industrial injury.
The medical panel concluded that there was a medically demonstrable causal link between claimant’s industrial injury and his deep vein thrombosis. The panel noted that obesity is a contributing factor in the development of deep vein thrombosis, but felt that in claimant’s case it contributed only 5% to the development of claimant’s condition, with the other 95% related to the industrial accident and subsequent surgery. The panel noted that claimant will continue to have pain, limited range of motion and other disabilities related to his condition because the thrombosis has matured to a chronic thrombotic scar tissue occlusion of the right popliteal vein. The panel felt claimant needs no further treatment for his deep vein thrombosis, but will need ongoing care for the resulting post-phlebitic syndrome, including support stockings and periodic elevation for the swelling and intermittent use of a venous compression pump. The panel recommended tat claimant lose weight, which they felt would lessen the pain, swelling and disability in his right leg.
Employer objected that the medical panel exceeded the scope of its authority by assigning claimant a permanent impairment rating; claimant responded that the panel calculated the extent of his impairment correctly and saved him from having to return to the panel to have the extent of his impairment assessed in future.

ORDER ON MOTION FOR REVIEW
Case Type --WA, AA; Work-related motor vehicle accident
Case Name --Joseph P. Calkins vs. Rent Way, Incorporated and Travelers Indemnity Company
Case Number --020343
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 11/03
Amount --The Labor Commissioner concluded that since employer/carrier failed to submit a rebuttal medical opinion, the evidence in the medical record which claimant presented at the hearing should stand. The Labor Commissioner therefore denied employer/carriers’ motion for review and affirmed the ALJ’s decision and award.
Injuries --Claimant suffered a back injury.
Attorney(s) - Plaintiff --David B. Havas, Ogden
Attorney(s) - Defense --Theodore E. Kanell of Plant, Christensen & Kanell
Facts/Contentions --Claimant was involved in a motor vehicle accident while in the course and scope of his employment and sought medical and disability benefits. An ALJ conducted a hearing, but by that time the parties had resolved their dispute regarding medical benefits; the only issue unresolved was the issue of temporary total disability compensation. The ALJ concluded that claimant was off work for more than three days because of his injury; the ALJ therefore awarded claimant temporary total disability benefits.
Employer/carrier filed a motion for review of the case by the Labor Commissioner, claiming the evidence did not support the ALJ’s conclusion and award.
The Labor Commissioner noted that the record included Dr. Barson’s note that claimant was unable to work for three months following his accident. When this evidence was submitted at the evidentiary hearing, employer/carrier sought and was granted leave to submit a rebuttal medical opinion, but never submitted anything further.

NON-COMPLIANCE CASE
Case Type --WA, MS; Employer non-compliance case
Case Name --In the matter of the non-compliance of Teni Faamoe dba Talofa Center
Case Number --10322019835
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 11/03
Amount --The ALJ affirmed that employer violated the Utah Code by not maintaining workers’ compensation insurance on his workers and the penalty was therefore correctly assessed. However, the ALJ subtracted $16.04 for the four days of the period cited during which employer did not employ anyone. The ALJ ordered employer to pay $2,493.55 to the Uninsured Employers’ Fund.
Attorney(s) - Plaintiff --Thuan V. Tran
Attorney(s) - Defense --For Industrial Accidents Division and Uninsured Employers’ Fund: Lorrie Lima
Facts/Contentions --Employer was cited for failing to maintain workers’ compensation insurance on his employees. He appealed, claiming he never employed any employees during the time period at issue, and the matter was scheduled for a hearing before an ALJ.
At the hearing, employer stated that for eighteen months he ran a business which consisted of renting out the Talofa Center for parties, receptions and gatherings. He further admitted that he hired more than one person as security for each event held at the Talofa Center. The ALJ concluded that these people were employees under Utah Law.
Utah law states that the penalty imposed on an employer for failing to maintain workers’ compensation insurance on employees shall be $1,000 or three times the premium the employer would have paid during the period of non-compliance, whichever is greater.

ORDER ON MOTION FOR REVIEW
Case Type --WA, SF; Work-related fall
Case Name --Veldon E. Foil vs. Pepsi Bottling Group and Transcontinental Insurance
Case Number --020063
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 11/03
Amount --The Labor Commissioner found that while claimant’s work injury might not be the sole cause of his disability, it was definitely the direct cause. The Labor Commissioner therefore affirmed the ALJ’s decision and award and denied employer/carrier’s motion for review.
Injuries --Claimant suffered a back injury; his physicians agreed that the work injury permanently aggravated his lumbar degeneration, as a result of which he is now permanently limited to sedentary activity. Except for one brief interval of light duty work, he has been unable to work since he fell.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Theodore E. Kanell of Plant, Christensen & Kanell
Damages --Employer/carrier paid claimant temporary total disability and medical benefits.
Facts/Contentions --Claimant worked for employer as a delivery person. His job involved handling cases of beverages weighing 15 to 20 pounds, with frequent bending, stooping and stretching. He fell at work and felt immediate pain in his back. Over the next 24 hours his symptoms grew worse, with pain and weakness radiating down his right leg, and since then he has been unable to return to his job. The evidence presented at the hearing on his claim indicated that before the accident he engaged in water skiing, boating and automobile restoration as well as performing his regular work duties. Since the accident, he has been unable to engage in any of these activities. He uses a walker and is able to do only the least strenuous household activities, such as folding clothes. Except for a temporary light duty assignment, he has not been called back to work for employer, and he has sought other employment without success. The ALJ at his hearing issued a preliminary finding of permanent and total disability.
Employer/carrier filed a motion for review of the case by the Labor Commissioner, arguing that claimant did not meet two of the three statutory requirements which would make him eligible for permanent total disability compensation under Utah law. To qualify, a worker must have suffered significant impairment and must be permanently and totally disabled; also, his permanent and total disability must have been caused by an industrial accident. Employer/carrier did not dispute that claimant is permanently and totally disabled, but they did dispute that his industrial accident was the direct cause of his disability. Employer/carrier also disputed that claimant suffered a significant impairment as a result of his industrial accident and injury.
The Labor Commissioner concluded that claimant did suffer a significant impairment in the industrial accident, since he can no longer perform the activities he did before he fell. The Labor Commissioner further concluded that since claimant was able to work before he fell and now cannot, the fall was the direct cause of his permanent total disability.

ORDER ON MOTION FOR REVIEW
Case Type --WA, AA; Work-related automobile accident
Case Name --Robert Higgins vs. Aqua Massage and Hartford/Twin City Fire Insurance
Case Number --000807
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 11/03
Amount --The Labor Commissioner concluded that travel was an essential part of claimant’s work duties. His travel was the condition out of which his industrial injury arose, and he was therefore entitled to benefits. The Labor Commissioner denied employer/carrier’s motion for review and affirmed the ALJ’s findings and award.
Injuries --Claimant suffered multiple serious injuries.
Attorney(s) - Plaintiff --K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense --Theodore E. Kanell of Plant, Christensen & Kanell
Facts/Contentions --Claimant worked for employer as an assistant manager. His job duties included doing whatever was needed to make his employer’s operation run smoothly. He delivered merchandise to employer’s kiosks in various shopping malls; the merchandise was delivered to him at his home and kept there until it was needed. Claimant had a computer at his home which had been provided to him by employer for use in scheduling and generating reports connected with the business, and claimant spent a fair amount of time working on this computer for the company. He began each workday by working on the computer, then called the employees scheduled to work that day and then drove to one or more of employer’s kiosks. He was injured in an automobile accident close to Fashion Place Mall, where employer had a kiosk. Due to the trauma of the accident, he never remembered any of the events of the day he was injured. However, the time when the accident occurred indicated that he was following his normal routine and was on his way to the mall when he was injured. Employer/carrier argued that claimant was not in the course and scope of his employment at the time of his injury, but an ALJ, after conducting a hearing, found claimant was injured in the course and scope of his employment and therefore awarded him benefits.
Employer/carrier filed a motion for review of the case by the Labor Commissioner, arguing that under Utah law injuries suffered while an employee is coming to or going from work are not compensable. However, the Labor Commissioner noted, the “coming and going” rule only applies to cases where travel is not an integral part of the work itself.

ORDER ON MOTION FOR REVIEW
Case Type --WA; Work-related injury
Case Name --Arvie J. Johnstun vs. Kennecott Utah Copper Corporation (self-insured) and Employers’ Reinsurance Fund
Case Number --940217
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 11/03
Amount --The Labor Commissioner granted employer/carrier’s motion for review, reversed the ALJ’s decision, and denied the claim for permanent partial disability benefits.
Injuries --Claimant suffered a pulled costal (rib-cage) muscle which resulted in pneumonia.
Attorney(s) - Plaintiff --David K. Smith
Attorney(s) - Defense --For Kennecott: D. Zachary Wiseman of Ray, Quinney & Nebeker; for UIF: Edwin C. Barnes of Clyde, Snow, Sessions & Swenson
Facts/Contentions --The parties agreed that claimant pulled a muscle in his rib-cage at work, and the injury resulted in pneumonia. Employer/carrier accepted liability and paid claimant benefits for the time he was off work, as well as medical benefits. The parties disagreed over whether the episode left claimant with a permanent industrial whole-person impairment. An ALJ conducted a hearing on the matter and concluded that claimant did suffer permanent partial impairment; the ALJ therefore awarded claimant permanent partial disability benefits. In reaching this decision the ALJ relied on a medical statement by Dr. Dean, a member of the medical panel appointed by the ALJ to consider the issue of the medical causation of claimant’s permanent impairment, if any. Dr. Dean wrote that the primary cause of claimant’s disability was chronic obstructive pulmonary disease from his 80-pack-per-year smoking history, but the episode of pneumonia might have been a contributing factor, given the presence of minimal scarring in the left lung base. The ALJ concluded that the episode of pneumonia left claimant with a 2.5% industrial whole-person impairment, and therefore awarded claimant permanent partial disability benefits accordingly.
Employer/carrier filed a motion for review of the case by the Labor Commissioner, arguing that the medical evidence indicated claimant suffered no permanent partial impairment from the pneumonia.
The Labor Commissioner noted that Dr. Dean’s opinion was decidedly equivocal and was contradicted by the opinions of Dr. Pearl and Dr. Goddard. These other two medical experts expressed definite opinions that the pneumonia did not cause any permanent partial impairment, and they explained their conclusions. The Labor Commissioner found their opinions to be well-reasoned and consistent with the unchallenged facts regarding claimant’s recovery from the pneumonia and subsequent return to work. The Labor Commissioner therefore found that claimant did not suffer any permanent partial impairment from his pneumonia.

MOTOR VEHICLE ACCIDENT
Case Type --WA, AA; Work-related automobile accident
Case Name --John S. Menges vs. Smith Transportation dba Yellow Cab and Workers’ Compensation Fund
Case Number --2001889
Court/Judge --Eblen
Verdict/Settlement --Order, 11/03
Amount --The ALJ accepted the medical panel’s report and ordered employer/carrier to pay claimant $532.20 in additional temporary total disability compensation for the additional time he was off work before he stabilized medically, as well as $1,937.52 in permanent partial disability benefits for his 3% industrial whole-person impairment. These awards are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney. Employer/carrier must also pay all claimant’s related medical expenses, including payment for up to 10 chiropractic treatments per year.
Injuries --At the emergency room, claimant was diagnosed with acute cervical strain and chest wall contusion. When his pain continued, he sought and received chiropractic treatment. He made slow but steady improvement; however, about two months after the accident he returned to the emergency room with a complaint of pain in his chest, heart flutters, headache, and numbness and tingling radiating down his legs. Cervical and lumbar MRIs revealed modest degenerative disc disease with a subligamentous herniation at L4/5, which was apparently aggravated by the accident. Claimant underwent a lumbar epidural injection and experienced relief; however, two months later he returned to the emergency room complaining of pain in his neck. He sought treatment and underwent evaluation by various physicians and chiropractors after this episode and continued to receive chiropractic treatment, although employer/carrier refused to pay for more than 25 visits.
Attorney(s) - Plaintiff --Michael G. Belnap, Ogden
Attorney(s) - Defense --Lori Hansen
Expert Witness(es) -- Because of conflicting medical testimony, this case was referred to a medical panel chaired by Dr. Madison Thomas--neurologist.
Damages --Employer/carrier paid claimant $7,384.85 in medical benefits and $2,441.14 in temporary total disability benefits.
Facts/Contentions --Claimant was driving a cab on southbound Washington Boulevard in Ogden, approaching 30th Street. A northbound vehicle made an abrupt and improper left turn in front of claimant, who was unable to stop in time and struck the other vehicle. Claimant was taken by ambulance to a local emergency room. In the weeks and months following his injury, he reported, he was unable to drive and therefore could not work; he underwent various types of medical treatment.
Claimant’s employer accepted liability and paid temporary total disability compensation and medical expenses. However, employer/carrier contended that chiropractic care beyond the treatment claimant initially received was not medically necessary to treat claimant’s industrial injury. Employer/carrier also disputed claimant’s entitlement to additional temporary total disability compensation and disputed his degree of permanent partial impairment, if any.
The medical panel concluded that the additional chiropractic care claimant received beyond the 25 visits paid for by his employer was medically necessary to treat his industrial injury, since chiropractic is the recommended treatment for this type of injury. The panel suggested that up to 10 chiropractic treatments per year would be reasonable for future treatment of this particular injury. The panel concluded that claimant was medically stable four months and one week after he was injured, and that he did not need to be off work. The panel awarded claimant a 3% industrial whole-person impairment rating.

ORDER ON MOTION FOR REVIEW
Case Type --WA, SI; Work-related repetitive stress injury
Case Name --Douglas Owens vs. Beckstrom Body Shop and/or Workers’ Compensation Fund
Case Number --020214
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 11/03
Amount --The Labor Commissioner affirmed the medical panel’s findings and the ALJ’s decision. The Labor Commissioner denied claimant’s motion for review.
Injuries --Claimant suffered bilateral stress injuries to his elbow and underwent two release surgeries. He later claimed the industrial accidents also caused cervical spinal damage; his employer contested this claim.
Attorney(s) - Plaintiff --Michael G. Belnap, Ogden
Attorney(s) - Defense --Lori Hansen
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of a neurologist, and orthopedic surgeon and a psychiatrist.
Facts/Contentions --Claimant was using a pry-bar to remove an axle nut while working in employer’s automobile repair shop. He said that the axle nut snapped and claimant felt a pop in his left wrist and a shock throughout his body. Several weeks later, he said, he felt a sharp pain in his left elbow while working on another repair job. He underwent release surgeries on both elbows, and employer/carrier accepted liability and paid benefits. He later left his job with employer and worked for a series of other employers. Twice during this period he fell down the stairs at his home, and each time he sought medical attention. He underwent surgery on his cervical spine after he continued to experience back and neck pain. He sought additional benefits from this employer to pay for the surgery on grounds that his cervical spinal injuries were caused by the industrial accidents he suffered while working for this employer. An ALJ conducted a hearing on his case and referred the medical issues to a medical panel. The ALJ accepted the panel’s findings that the cervical pain was unrelated to the industrial accidents; the ALJ therefore denied claimant further benefits.
Claimant filed a motion for review of the case by the Labor Commission, contending that the medical panel report contained factual errors as well as errors in medical interpretation.
The Labor Commissioner noted that the panel members personally examined claimant, and their report contained comments on matters of observation and judgment within their fields of expertise, which the Labor Commissioner found did not constitute errors. The Labor Commissioner also noted that claimant challenged the panel’s findings with material extracted from the Internet. “Without proper foundation,” the Labor Commissioner wrote, “such material cannot be viewed as authoritative.”

ORDER ON MOTION FOR REVIEW
Case Type --WA; Work-related injury
Case Name --Michael Sabine vs. Park City Ski Corporation and Workers’ Compensation Fund
Case Number --020493
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 11/03
Amount --The Labor Commissioner affirmed the ALJ’s decision and denied claimant’s motion for review.
Injuries --Claimant suffered a back injury.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Lori Hansen
Facts/Contentions --Claimant stated that he injured his back while working for employer. He received workers’ compensation benefits for the injury in prior proceedings before the Labor Commission. He sought additional benefits on grounds that he required surgery to treat his industrial back injury. An ALJ conducted a hearing on the matter and concluded that claimant failed to present any evidence proving the surgery was necessary or that it was medically necessitated by his industrial injury. The ALJ therefore dismissed the claim for further benefits with prejudice.
Claimant filed a motion for review of the case by the Labor Commissioner, contending that the ALJ had no authority to dismiss his claim.
The Labor Commissioner noted that claimant did not contest the ALJ’s findings of fact; the Labor Commissioner therefore adopted those findings. Since the evidence did not show the surgery was medically necessary to treat claimant’s industrial injury, or indeed that it was necessary at all, the Labor Commissioner agreed with the ALJ’s findings. The Labor Commissioner noted that by issuing this order, the Commission did not preclude claimant’s filing of future claims if his circumstances should change.

ORDER ON MOTION FOR REVIEW
Case Type --WA; Work-related injury
Case Name --Sarah E. Calkins vs. Lakeview Hospital; Zurich Insurance; and RSKO Claims
Case Number --020467
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 12/03
Amount --The Labor Commissioner noted that in his opinion, Lakeview misunderstood the impact of the ALJ’s decision, since the ALJ did not impose a present obligation on Lakeview to pay any medical expenses or attorney’s fees at the time of the award. Rather, the ALJ merely ruled that the award was compensable, even though claimant did not prove she required payment of any outstanding medical expenses or benefits for necessary future treatment. If such expenses are claimed in future, the Commissioner noted, Lakeview will have the opportunity to contest them after they are filed. The Commissioner ruled that the issues raised in Lakeview’s motion for review were not yet ripe for Commission review; the Commission therefore dismissed this motion for review without prejudice.
Any party has 20 days from the date of this order to ask the Utah Labor Commissioner to reconsider this order. Alternatively, any party may appeal the order to the Utah Court of Appeals within 30 days of the date of this order by filing a petition for review with the court.
Injuries --Claimant suffered a shoulder injury.
Attorney(s) - Plaintiff --Marsha Atkin of Atkin & Associates
Attorney(s) - Defense --Theodore E. Kanell of Plant, Christensen & Kanell
Facts/Contentions --After claimant requested and received a hearing on her claim for workers’ compensation benefits for her shoulder injury, the ALJ ruled that her injury was compensable, although she failed to prove she was had failed to receive benefits for any outstanding medical bills. The ALJ therefore issued an instruction to Lakeview to pay any of claimant’s “reasonably related” medical expenses in future. Lakeview requested Commission review. Lakeview did not object to claimant’s right, in general, to workers’ compensation benefits. Rather, Lakeview objected to the ALJ’s purported award of medical expenses and attorney’s fees to claimant.

ORDER ON MOTION TO DISMISS
Case Type --WA, XS; Work-related extraordinary mental stress claim
Case Name --(Name of case withheld)
Case Number --2003790
Court/Judge --La Jeunesse
Verdict/Settlement --Order on motion for dismissal, 12/03
Amount --The ALJ noted in his opinion that under Utah law, restructuring of the department claimant supervised over a 60-day period could not in and of itself be considered to produce extraordinary mental stress when compared with national employment life, since restructuring is a common event in today’s business environment. The ALJ also noted that claimant’s unsupported perception that the restructuring of her department constituted an extraordinary stress could not serve as the basis for relief under Utah law. The ALJ therefore granted employer/carrier’s motion and dismissed this claim with prejudice.
Injuries --Claimant alleged that she suffered extraordinary mental stress which caused physical, mental and/or emotional disease.
Attorney(s) - Plaintiff --Brian Bernard
Attorney(s) - Defense --Bret A. Gardner of Blackburn & Stoll
Facts/Contentions --Claimant alleged that she met with her immediate supervisors during or shortly after the restructuring of the department she supervised. At that time, claimant stated, her supervisors expressed concern about her mental state, and the meeting ended with claimant’s agreement to seek medical advice. Two days later, according to claimant, she met with one of her supervisors to receive her performance appraisal for the period ending two months earlier. At that meeting, claimant stated, she was told that her performance was rated above average for the period in question and claimant was given a merit raise. Claimant stated that the unionization of her department constituted an “extraordinary” and “massive” transition, and met the requirements of “extraordinary mental stress” as defined in Utah Code Section 34A-3-106(2)(a) and (b). Claimant complained of “unfair labor practices actionable ny law,” “denial of reasonable accommodation,” “suspension,” “termination,” “violation of Older Americans Act” [presumably the Age Discrimination in Employment Act, according to the ALJ] and “threats.” Claimant stated that the matters she complained of were also the subject of an EEOC complaint.
Employer/carrier moved for dismissal, denying that restructuring of claimant’s department constituted an extraordinary stressor.
The ALJ noted that under the law, the extraordinary nature (if any) of alleged mental stress is to be judged according to an objective standard in comparison with contemporary national employment life. Also, the ALJ noted, the law excludes “alleged discrimination, harassment, or unfair labor practices otherwise actionable by law.” The matters which became the subject of the EEOC complaint, therefore, were specifically excluded by law from recovery under the Workers’ Compensation Act.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Casper Dunkel III vs. G S L Electric; Kemper Insurance Company; Fremont Comp; and Utah Guaranty Fund
Case Number --20021050
Court/Judge --Eblen
Verdict/Settlement --Order, 12/03
Amount --The ALJ found that claimant was not entitled to reimbursement for the medical expenses at issue, since he failed to prove that these expenses were incurred in treatment of his cervical spinal injury; the ALJ therefore dismissed this claim with prejudice. The ALJ found that claimant was entitled to additional temporary total disability benefits for the period running from July 9, 2002 through August 16, 2002, as well as permanent partial impairment benefits for his permanent whole-person impairment. The ALJ ordered employer/carrier (Kemper) to pay claimant accrued temporary total disability benefits of $2,835.64 and accrued permanent partial disability benefits of $13,749.84 for his 13% related whole-person impairment. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney.
Injuries --Claimant suffered a cervical spinal injury and underwent a discectomy and arthrodesis with bilateral decompression and foraminotomies at C5/6. Dr. Sawchuk concurred with Dr. Chung’s award to claimant of a 13% whole-person impairment rating, with all of the impairment related to claimant’s industrial accident.
Attorney(s) - Plaintiff --John Spencer Snow
Attorney(s) - Defense --For G S L and Fremont: Theodore E. Kanell of Plant, Christensen & Kanell; for Fremont and Utah Guaranty Fund: Mark D. Dean of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Robert Berry; Dr. Terry Sawchuk; Dr. Reed Fogg--treating physicians
Expert Witness(es) - Defense --Dr. Jeff Chung--independent medical examination physician
Damages --Claimant sought reimbursement of $2,538.86 for what he claimed were unpaid medical bills. However, in some cases the ALJ was unable to find documentation in the medical record proving that the bills were incurred to treat claimant’s cervical spinal injury, and in other cases the bills were incurred after the date on which claimant stated that he stopped incurring medical expenses for treatment of his cervical spinal injury.
Facts/Contentions --Claimant was injured in November of 1999, while working as an electrician for employer on the LDS Conference Center, when an oak pallet fell and struck him on the head. Claimant was wearing a hard hat at the time, but experienced neck pain and was removed from the worksite by ambulance and taken first to WorkMed and then to a local hospital. Claimant returned to work immediately after the incident, although he continued to receive care for his cervical spinal injury. He had also suffered an earlier lumbar spinal injury at work, for which he filed a separate workers’ comp claim. Two years after this injury, he was involved in a non-industrial automobile accident in which he fell asleep at the wheel, ran off the road and struck a pole, deploying his airbag. He stated that though he suffered pain in his head and left foot following it, this accident did not appreciably change his cervical symptoms. At his hearing, claimant and the other parties agreed that Kemper was the insurer of record at the time of the accident and that the other insurers should be dismissed from the adjudication of the claim.
Employer/carrier admitted that the accident occurred and stated that they accepted liability and paid benefits; however, they denied that claimant was entitled to further temporary total disability benefits beyond those they had already paid him because, they claimed, he attained maximum medical stability on July 8, 2002.
The ALJ noted in her opinion that claimant’s treating physician and the independent medical examination physician differed in their assessments of the date on which claimant attained medical stability by only 40 days; the ALJ was therefore not required by law to refer the matter to a medical panel, and she chose to accept Dr. Chung’s opinion that claimant attained medical stability on August 16, 2002. Claimant stated that he did not receive any medical treatment related to his cervical spine after July of 2002.

ORDER ON MOTION FOR REVIEW
Case Type --WA, OD; Work-related injury, occupational disease claim
Case Name --Carmen Herrera vs. Parker-Hannifin Corporation and C. W. Reese Company
Case Number --99-0234, 99-0880
Court/Judge --This order was issued by the Labor Commission Appeals Board, consisting of Colleen S. Colton, chair; Patricia S. Drawe; and Joseph E. Hatch.
Verdict/Settlement --Order, 12/03
Amount --The Appeals Board of the Labor Commission noted in its opinion that the medical record clearly showed claimant suffered chronic pulmonary problems and had to use prednisone before she ever worked at Parker-Hannifin. The Appeals Board found that these problems were not shown by the medical record to have been caused or aggravated by claimant’s work at Parker-Hannifin. The Appeals Board therefore found that claimant’s prednisone-related hip fracture could not be considered a work-related injury. The Appeals Board upheld the ALJ’s decision and denied claimant’s motion for review.
Any party has 20 days from the date of this order to ask the Appeals Board of the Utah Labor Commission to reconsider this order. Alternatively, any party may appeal the order to the Utah Court of Appeals within 30 days of the date of this order by filing a petition for review with the court.
Injuries --Claimant suffered a fractured right hip, which she claimed was caused by the prednisone she was required to take for pulmonary problems related to her work at Parker-Hannifin. She also claimed her exposure to various fumes and dust at Parker-Hannifin caused her asthma, bronchitis, and avascular necrosis.
Attorney(s) - Plaintiff --Bradford D. Mylar, Orem
Attorney(s) - Defense --Henry K. Chai of Blackburn & Stoll
Facts/Contentions --The ALJ denied the hip fracture claim on grounds that claimant failed to provide notice of the claim within the time limit allowed by law. The ALJ denied the occupational disease claim on grounds that claimant failed to prove her work at Parker-Hannifin was either the medical or the legal cause of her symptoms. Claimant requested review by the Appeals Board of the Labor Commission, contending that the lack of adequate ventilation at Parker-Hannifin caused her to increase her use of prednisone, which in turn weakened her bones and led to the fracture of her right hip. Claimant did not contest the dismissal of her occupational disease claim.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Concepcion Lopez vs. Granite Construction and/or Transportation Insurance
Case Number --2002840
Court/Judge --Hann
Verdict/Settlement --Order, 12/03
Amount --The ALJ found there was insufficient evidence in the medical record to prove that claimant’s right knee injury was caused by or related to the left knee injury. The ALJ therefore dismissed the claim for benefits in connection with the left knee surgery with prejudice. However, the ALJ found that claimant had been underpaid temporary total and permanent partial disability benefits for his right knee injury and surgery. The ALJ therefore ordered employer/carrier to pay claimant additional accrued temporary total disability benefits of $5,494.79 as well as $1,333.62 in accrued permanent partial disability compensation. These benefits are due and payable in a lump sum of $6,828.41 plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney.
Injuries --Claimant suffered left and right knee injuries and underwent left and right total arthroplasties (replacements) at different times.
Attorney(s) - Plaintiff --David K. Smith
Attorney(s) - Defense --Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) - Plaintiff --Dr. Siggard--treating physician/surgeon
Expert Witness(es) - Defense --Dr. Richard Knoebel--independent medical evaluation physician
Damages --Claimant was paid for 95.28 weeks of temporary total disability and 23.125 weeks of permanent partial disability in relation to his permanent impairment.
Facts/Contentions --Claimant worked for employer as a laborer. He had been working on the light rail construction site, but the work slowed and he was sent to a road-building job in Bountiful. At that site, he and a co-worker were unloading cast-iron grates from a pick-up truck when one of the grates slid out of the truck and struck claimant in the knee, knocking him to the ground. Claimant was unloading another grate at the time; the grates were 3 feet long by 18 inches wide and weighed 260 to 300 pounds. Claimant’s knee began to swell and hurt immediately, but he continued working that day and the next because his boss did not want him to leave for treatment, claiming that he was needed on the job. When claimant continued to complain of pain, his boss took him to the industrial clinic. After an MRI revealed a torn meniscus, claimant underwent surgery to repair the tear, but the surgery did not heal properly, and claimant eventually had to undergo a total knee replacement. Dr. Siggard gave claimant a 15% whole-person impairment rating, with 50% of that impairment related to his industrial injury and 50% related to pre-existing degenerative disease. Claimant then began experiencing pain in his right knee; he claimed these symptoms resulted from the fact that he had to bear all his weight on his right knee for so long after his left knee failed to heal. Dr. Siggard recommended total replacement of this knee also, but noted that X-rays revealed advanced lateral compartment arthritis, bone on bone and spur formation due to osteoarthritis. Dr. Siggard, in his summary of medical record, did not reference claimant’s right knee problems to his industrial injury.
Employer/carrier accepted liability and paid benefits, but did not feel they should have to pay for the right knee replacement, since, they claimed, it was not industrially caused. Dr. Knoebel found claimant’s right knee problems were caused by his pre-existing osteoarthritis.
The ALJ noted that the preponderance of the medical evidence did not prove a medical causal connection between claimant’s industrial injury and his right knee problems.

WORK INJURY
Case Type --WA; work-related injury
Case Name --Jose Rivas vs. Charles T. Brown dba Excavate and/or Charles T. Brown dba Dalton Pipelines & Excavation and Uninsured Employers’ Fund
Case Number --20033
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 12/03
Amount --The ALJ ordered the UEF to pay claimant $2,133.10 in accrued temporary total disability compensation, as well as all related medical expenses from his work injury. These benefits are due and payable in a lump sum plus interest, and the UEF retains full rights of subrogation against employer Brown for these payments. The ALJ ordered employer Brown to reimburse the UEF for these benefits and also to pay to the UEF a penalty of 15% of all sums paid by the UEF to claimant for Brown’s failure to maintain workers’ compensation insurance on his employees during the time claimant was injured.
Injuries --Claimant suffered a head injury.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Employer Brown did not answer or appear. For UEF: Lorrie Lima
Facts/Contentions --At claimant’s hearing, claimant and the UEF stipulated to the essential facts of the case, since employer Brown did not appear and had not filed an answer by the time of the hearing. Claimant was working for employer Brown when a backhoe hit him in the head. Brown did not have workers’ compensation insurance on his employees at the time and later went out of business. Claimant stated that he paid some of his medical bills on his own, and some were still outstanding.
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