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 f