Industrial Reports

2004

ORDER ON MOTION FOR REVIEW

Case Type --WA; Work-related injury
Case Name --Veronica Sanchez vs. South Valley Health Center LLC; Quality Health Care, Incorporated; and Workers’ Compensation Fund
Case Number --021170
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 12/03
Amount --The Labor Commissioner wrote in his opinion that since the UEF was not a party to the evidentiary proceeding conducted by the ALJ, that proceeding could have had no effect on the UEF’s legal rights or obligations; furthermore, the ALJ’s decision imposed no liability on the UEF. If claimant seeks to obtain benefits from the UEF in future, the Commissioner wrote, the UEF will of course be a party to the related proceedings, and will then have the opportunity to raise any defense arguments it may have regarding the claim. However, until that eventuality occurs, if it ever does, the Commissioner found that the UEF has no standing to seek or obtain Commission review of the ALJ’s decision. The Commissioner therefore dismissed the UEF’s motion for review without prejudice.
Any party has 20 days from the date of this order to ask the Utah Labor Commissioner to reconsider this order. Alternatively, any party may appeal the order to the Utah Court of Appeals within 30 days of the date of this order by filing a petition for review with the court.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --For employer/WCF: Eugene Miller Jr.; for UEF: Lorrie Lima
Facts/Contentions --The Uninsured Employers’ Fund was originally added as a defendant to this claim for benefits related to an industrial injury after the initial claim was filed. The UEF was removed as a party to the claim before the evidentiary hearing was held. At that hearing, the ALJ awarded claimant workers’ compensation benefits and held South Valley Health Center liable for payment of those benefits.
The UEF sought review of the ALJ’s decision by the Labor Commissioner, claiming that it was not notified of the date of the hearing and therefore never had the opportunity to present its arguments and defenses regarding the claim.

MOTOR VEHICLE ACCIDENT
Case Type --WA, TA; Work-related truck accident
Case Name --(Name of case withheld)
Case Number --2000137
Court/Judge --George
Verdict/Settlement --Order, 12/03
Amount --The ALJ overruled all of claimant’s objections to the medical panel’s report on grounds of lack of factual foundation. The ALJ accepted the medical panel’s report and found that only the medical care claimant received for his right ankle injury was necessitated by his industrial accident. The ALJ found claimant failed to establish a medical causal connection between the accident and his mental problems; the ALJ therefore dismissed the claim for benefits related to these problems, including permanent total disability benefits, with prejudice.
Injuries --Claimant suffered a fracture of his right ankle; he also claimed the accident caused a brain injury which gave rise to mental problems. He stated that he experienced a psychotic break after he returned home from the accident. Since then, he claimed, his condition has declined steadily, to the point that he cannot work or manage his own affairs and has qualified for Social Security disability benefits.
Attorney(s) - Plaintiff --Bruce Wilson
Attorney(s) - Defense --Eugene Miller Jr.
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Madison Thomas--neurologist and chair; Dr. Owen Smoot--orthopedist; Dr. Robert Burgoyne--psychiatrist; and Thomas Schenkenberg, PhD--clinical psychologist/clinical neuropsychologist.
Facts/Contentions --Claimant stated that he rolled the truck he was driving for his employer after the truck’s lights went out and claimant lost control of the vehicle. Claimant contended that he suffered mental problems after the accident. He did not lose consciousness at the scene and suffered no retrograde amnesia. He was trapped in the vehicle, but continued to act in a logical manner, turning off the ignition to avoid a fire. His scores on the Glasgow Coma Scale were normal at the scene, during transportation to a medical facility and at the hospital, and he was never diagnosed with concussion. There was no concern about his mental status during his initial hospitalization and treatment following the accident, and he signed numerous consent forms in connection with surgical procedures, which indicated that he was judged to be capable of giving his informed consent to these procedures.
Employer/carrier accepted liability for the injury to claimant’s right ankle, but denied liability for any other claims or injuries.
The medical panel concluded that claimant suffered from a factitious mental disorder, with psychological and physical signs and symptoms; the panel also found symptoms indicative of depression with paranoid, societal, suicidal and homicidal tendencies. The panel found that claimant’s mental condition had stabilized; they gave him a 10% whole-person impairment rating for the factitious disorder and a 5% whole-person impairment rating for the depression, but the panel did not attribute any of this impairment to claimant’s industrial accident. The panel concluded that the medical care and rehabilitation claimant received for the injury to his ankle were medically necessitated by his industrial accident, but the panel found that all of his expenses for this treatment were incurred before he experienced the psychotic break. The panel found no further medical care would be needed to treat claimant’s industrial injury. The ALJ noted that a brain injury of the type claimant alleged, even if suffered in the accident, would gradually improve over time and would certainly not involve progressive decline, as claimant alleged was the case with him. It was not until after claimant had received several days of home nursing care that he began to experience pseudoseizures and his apparent mental status began to decline significantly. The ALJ noted that these events transpired after claimant and his wife had reviewed printed information about closed head injury. Claimant’s adopted brother-in-law has a seizure disorder. The ALJ noted that claimant’s cognitive status improved significantly during an inpatient stay on the rehabilitation unit of the University of Utah Hospital to the point that he was judged able to return to work and live independently; but he declined again after returning home until, the panel wrote, “he presents as an incompetent individual unable to manage his own affairs.” Three examiners indicated significant concern about the level of effort put forth by claimant on cognitive tests. Claimant has experienced numerous psychiatric, behavioral and conduct problems over the years following the accident. Dr. Schenkenberg of the panel wrote that in his opinion, claimant exhibited “a cognitive presentation of practiced incompetence,” and that “this has become so habitual for him that he simply no longer applies himself to the challenges presented to him.” Though claimant denied any suicidal or homicidal feelings at the time the panel examined him, Dr. Schenkenberg expressed deep concern as to claimant’s potential for violence to himself, his wife, or others around him. Dr. Schenkenberg opined that claimant is in need of continuing psychiatric care, although this need does not stem from the industrial accident but from a pre-existing mental condition.
Claimant disagreed with the medical panel’s failure to find a causal connection between his mental problems and his industrial accident. Claimant contended that the accident left him permanently and totally disabled because of his mental problems.

ORDER ON MOTION FOR REVIEW
Case Type --WA, OC; Work-related injury, ongoing case
Case Name --Lura J. Alger vs. Iron County and Workers’ Compensation Fund
Case Number --011053
Court/Judge --This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 12/03
Amount --The Commissioner wrote in his opinion that the Commission engages in interlocutory review (review of an ALJ’s preliminary determinations), which can delay or interrupt the hearing process, only if the advantages of deciding the issues piecemeal will outweigh the possible delays or interruptions. The Commissioner wrote that he felt interlocutory review was justified in this case, since the question of whether a physician’s personal or professional relationships with participants in a workers’ compensation claim would disqualify the physician from serving on a medical panel to evaluate the claim is one that the Commission has not encountered before and is also central to the adjudication of the claim. The Commissioner wrote that medical panel reports are frequently persuasive, but not necessarily conclusive; however, they are often given great weight because they are presumed to be comprehensive, authoritative and impartial. The Commissioner agreed with Iron County that “under some circumstances social, professional or other relationships may impinge on a physician’s objectivity and impartiality in evaluating an injury or disease claim for the Commission.” If such is the case, the physician should decline to serve on the panel, or the Commission should decline to appoint the physician to the panel, or should remove the physician from the panel. “But before such steps are taken,” the Commissioner continued, “it must be established that the conflict is real and significant, rather than speculative and insubstantial.” The Commissioner therefore remanded the case to the ALJ for further proceedings to determine the answers to two questions: 1) the nature of Dr. Smith’s relationship with attorney Urquhart and 2) whether that relationship significantly conflicts with Dr. Smith’s duty of objectivity and impartiality.
Any party has 20 days from the date of this order to ask the Utah Labor Commissioner to reconsider this order. Alternatively, any party may appeal the order to the Utah Court of Appeals within 30 days of the date of this order by filing a petition for review with the court.
Attorney(s) - Plaintiff --Dale W. Sessions, Cedar City
Attorney(s) - Defense --Stephen H. Urquhart of Thompson, Awerkamp & Urquhart, St. George
Expert Witness(es) --Because of conflicting medical testimony, this case is being referred to a medical panel.
Facts/Contentions --The parties to this action stipulated that the case should be referred to a medical panel, and the ALJ appointed Dr. Smith to chair the panel. Iron County then notified the ALJ that Dr. Smith is a friend and client of attorney Urquhart, who is representing Iron County in the claim; Iron County asked the ALJ to remove Dr. Smith from the panel on grounds that his relationship with attorney Urquhart might constitute a conflict of interest. The ALJ declined to remove Dr. Smith from the panel on grounds that “The only time a medical panel chairman would not be able to serve on a commission panel is if he had previously treated the petitioner, thus creating a conflict between his duty to act as an impartial medical evaluator and his prior role as a treating physician.” Iron County asked the Utah Labor Commissioner to review the ALJ’s decision.

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

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

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

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

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

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

REPETITIVE STRESS INJURY
Case Type --WA, SI; Work-related repetitive stress injury claim
Case Name --(Name of case withheld)
Case Number --20029411
Court/Judge --Hann
Verdict/Settlement --Order, 12/03
Amount --The ALJ found that claimant failed to prove the work actions leading to the aggravation of her pre-existing injuries exceeded the exertions a person might encounter in everyday life (the Allen test). The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered lower back and hip inflammation and pain. She was diagnosed by all three physicians with degenerative arthritis of the hips and lower lumbar spine which was exacerbated by sitting and driving.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Lori Hansen
Expert Witness(es) - Plaintiff --Dr. Cope; Dr. Voss
Expert Witness(es) - Defense --Dr. Marble--independent medical examination physician
Facts/Contentions --Claimant worked as a courier for employer, driving medical reports and testing supplies between Salt Lake City and Evanston, Wyoming, with a stop in Park City; she made this trip at least two but not more than three times a week. She began experiencing pain while driving after taking on additional trips to cover for a co-worker. One day, because she was not feeling well, she asked her father to drive with her on that day’s trip. As they neared the mouth of Parley’s Canyon, claimant stated, she experienced pain in her hip that was so severe that she had to lift herself up off her hip to relieve it. She continued driving, but had to stop at the first rest area and get out of the car to move around. She said she had trouble moving her left leg. She continued on to Evanston, and once there she stopped at a gas station and laid the car seat down so she could lie back and stretch. She said she felt pain relief on standing, but it hurt to twist her back. She continued on her run and eventually returned to Sandy; she called in sick the next day, sought medical treatment the same day, and has not returned to work since.
Employer/carrier contended that claimant’s problems and pain were caused by pre-existing degenerative arthritis and not by her work activities. Even if the pain was brought on by claimant’s work activities, employer/carrier argued, the work activities that caused the pain were not demanding enough to meet the Allen test. Utah case law (Allen vs. Industrial Commission) states that an injured worker seeking workers’ compensation benefits for aggravation of a pre-existing injury must prove that the work activities leading up to the re-injury exceeded those a person might encounter in everyday life.
Dr. Cope, Dr. Voss and Dr. Marble agreed that claimant’s symptoms probably stemmed from degenerative lumbar disc and hip disease, which might be caused to flare by prolonged sitting and driving but were not caused by claimant’s work activities.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Brad Brock vs. The Franklin Company and/or One Beacon Insurance
Case Number --20011088
Court/Judge --George
Verdict/Settlement --Order, 12/03
Amount --the ALJ accepted the medical panel’s findings and found that claimant failed to prove a causal connection between his work injury and his chronic intermittent symptoms. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered chronic intermittent cervical and upper extremity pain; surgery was recommended but has not yet been performed. Claimant had previous surgery.
Attorney(s) - Plaintiff --K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense --Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) --Because of conflicting medical testimony, the parties agreed to waive a hearing and refer the matter directly to a medical panel.
Facts/Contentions --Claimant contended that his need for surgery to relieve the chronic intermittent pain in his neck and upper arm was caused by a work injury.
Employer/carrier disputed the causation of the problem and claimed it was caused by natural degenerative changes.
The medical panel found that claimant’s symptoms were caused by a combination of prior injury, previous surgery and degenerative changes at C4/5.

AUTOMOBILE ACCIDENT
Case Type --WA, AA, SF; work-related automobile accident, falls
Case Name --(Name of case withheld)
Case Number --200230
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 12/03
Amount --The ALJ accepted the medical panel’s report and ordered employer/carrier to pay claimant $1,216.79 in accrued temporary total disability compensation for the time she was off work recovering from the accident and from her fractured foot and humerus. This award is due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. The ALJ also ordered employer/carrier to pay all of the medical expenses reasonably related to the treatment of claimant’s bone fractures, but not those related to the treatment of the irritable bowel syndrome, the depression, the dog-bite or the viral infection. The ALJ dismissed the claim for permanent partial disability benefits with prejudice. Injuries --Claimant suffered headaches following the wreck, as well as sustaining other head and facial injuries in the accident. She injured her arm and her foot in the subsequent falls, eventually breaking a bone in her foot and also suffering a spiral fracture of her humerus. She suffered from irritable bowel syndrome, short-term memory loss, associated attention difficulties and depression.
Attorney(s) - Plaintiff --Brian D. Kelm
Attorney(s) - Defense --Floyd Holm
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Madison Thomas--chair and neurologist; Dr. Robert Burgoyne--psychiatrist; and Thomas Schenkenberg, PhD--psychologist.
Facts/Contentions --Claimant was involved in what was essentially a head-on collision while in the course and scope of her employment with employer. She lost consciousness briefly at the scene and was examined by paramedics, after which she was taken to an emergency room by ambulance. She was off work and in bed the rest of that day and for the next five days, including the weekend; she said she returned to work the next Monday because she was feeling pressured. She worked that day and part of the next before pain forced her to return home, where she stayed for the rest of the week and the weekend. Claimant began experiencing headaches almost immediately after the accident and eventually received an occipital nerve block. Three months after the accident, she fell going down her back steps and injured her foot. Almost six months after that fall, she fell off a step-ladder while painting her daughter’s room and fractured her humerus. She was off work for two months and attended physical therapy thereafter, eventually having to use a bone stimulator because the fracture was not healing. She began having difficulties with her work, at which she had previously been very proficient, because she could no longer process verbal information and was experiencing short-term memory problems, often forgetting what she had been saying in the middle of a sentence or whom she was talking to on the phone. She had been an English major in college, but was suddenly unable to write a report which made sense. She was experiencing unsteadiness and lack of balance and having trouble walking straight; she fell five more times over the next two years without warning or reason. The last time she fell, she was crossing North Temple and fell as she stepped into the street. She got up and walked as far as the turning lane, where she fell again when she stooped to pick something up from the ground. She got to her knees, but was unable to get up off the ground. A driver got out of his car and helped her get up and walk to the sidewalk, where a co-worker escorted her into her office building. Claimant experienced depression and loss of self-esteem, as well as slurred speech, poor judgment, neck pain, and tingling in her arms. She often felt fatigue so great that she was unable to continue working and could not enjoy extra-curricular activities. Her doctor diagnosed her with post-concussion syndrome from the industrial car accident and recommended neurological and psychiatric follow-up.
Employer/carrier argued that claimant had a history of unexplained falls prior to the automobile accident. Employer/carrier contended that claimant’s cognitive difficulties and depression were not caused by the industrial car accident.
The medical panel opined that claimant suffered no psychiatric impairment or other permanent partial impairment as a result of the industrial automobile accident; the panel also ruled out an epileptiform or seizure-type disorder caused by the accident. However, they did feel that the accident exacerbated claimant’s pre-existing tendency to fall, so that the injuries to her arm and ankle resulting from her falls were related to the industrial accident through this exacerbation. The panel found that the treatment of claimant’s depression, her irritable bowel syndrome, a dog-bite and a virus were not industrially related.

DISABILITY DISPUTE
Case Type --WA; Work-related injury
Case Name --Employers’ Reinsurance Fund vs. James L. Coates
Case Number --99016
Court/Judge --George
Verdict/Settlement --Order, 12/03
Amount --The ALJ found that the statute in force at the time the award of disability benefits was made (the pre-1988 statute) did not allow such an award to be revisited or modified. The ALJ accepted the legal precedent established by Havlik, which was upheld by the Labor Commissioner upon review on 1/31/02. The ALJ therefore denied this motion to terminate benefits and ordered the ERF to pay claimant’s attorney’s fees.
Injuries --Claimant suffered back injuries and underwent five surgeries.
Attorney(s) - Plaintiff --Edwin C. Barnes of Clyde, Snow, Sessions & Swenson
Attorney(s) - Defense --Virginius C. Dabney of Dabney & Dabney, St. George.
Facts/Contentions --Coates was awarded permanent total disability benefits by a previous ALJ; these benefits were to continue for the remainder of his life. The ERF filed a petition a year later requesting that these benefits be terminated, as Coates was no longer totally disabled. Coates moved to dismiss the petition on grounds that the statute in force at the time his award was made did not allow termination of permanent total disability benefits after such benefits had been awarded. A second ALJ (the first was no longer at the Commission) denied Coates’ motion to dismiss; Coates filed a request for Commission review of this decision. The second ALJ resigned without forwarding the file to the Commission for review, and the case was forwarded to another ALJ. This ALJ recused himself on grounds that he represented the ERF on the case before becoming a judge; the fourth ALJ who received the file was alerted by an inquiry to the fact that a request for review had been filed, and he forwarded the file to the Commission. The Commission declined to rule at that time because a hearing date had been set for the matter before the fourth ALJ (Judge George) and the date of the hearing was very close.
ALJ George found the following: Coates went to work for Intermountain Farmers after being awarded permanent total disability benefits by the first ALJ. Coates continued in this job for three years; during this time he also earned an associate degree in business management. In 1991, Coates was apparently involved in an automobile accident. In 1995 the Social Security Administration reduced his Social Security disability payment to $25 per month because of the offset for the $950 monthly permanent total disability benefit payment he was receiving. Coates testified that he needed to return to work for financial reasons. In 1995 Coates went to work for Hurst Hardware with no special accommodations; he became night manager. Coates was involved in an automobile accident in 1996 and was released to return to work without restrictions from the effects of the accident. Coates testified that his wages were lower in 1999 than on prior occasions because he worked fewer hours than usual, as he was experiencing pain. He left work at Hurst on 11/16/99; thereafter he re-applied for full Social Security benefits, and these benefits were re-instated in November of that year. Coates walks with a cane and has to have help with his lawn and garden. He continues to receive total disability benefits from ERF. ERF argued that Coates should not continue to receive benefits as he is not totally disabled. Coates argued that under the law in force at the time his award was made, the award may not be revisited, changed or cancelled.

NON-COMPLIANCE CASE
Case Type --Ms; Miscellaneous (non-compliance dispute)
Case Name --In the matter of the non-compliance of C R Owens Trucking
Case Number --10322022363
Court/Judge --Eblen
Verdict/Settlement --Order, 2/03
Amount --The ALJ affirmed C R Owens Trucking’s violation of the law requiring it to maintain workers’ compensation insurance on its employees. The ALJ assessed C R Owens Trucking $75,705.98 as a penalty in accordance with the requirements of the statute.
Attorney(s) - Plaintiff --For the Industrial Accidents Division: Darci Tolbert
Attorney(s) - Defense --No one appeared on behalf of C R Owens Trucking.
Facts/Contentions --In June of 2003, the Industrial Accidents Division issued a determination and order against C R Owens Trucking for failure to maintain workers’ compensation insurance on its employees. The Division assessed a penalty of $133,655.06 against C R Owens Trucking covering the period in question. C R Owens Trucking filed a notice stating that it wished to appeal the assessment of the penalty and requesting a hearing.
A hearing was scheduled and notice was mailed to the parties, but no one appeared at the hearing on behalf of C R Owens Trucking. Investigator Larry Williams testified at the hearing.
As a result of the testimony presented at the hearing, the ALJ found the following: C R Owens Trucking was an employer under the meaning of the term as defined in the Utah Code. C R Owens Trucking failed to maintain workers’ compensation insurance on its 15 employees (maximum) during the period between 1/1/02 and 6/27/03. The ALJ recalculated the penalty using actual payroll information obtained by Larry Williams from the company.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Kelly Graham vs. Coastal Corporation and/or Workers’ Compensation Fund
Case Number --2002655
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 12/03
Amount --At the beginning of this case employer/carrier conceded that they owed claimant permanent partial disability compensation for a 17% related whole-person impairment, or $15,169.44. The ALJ accepted the medical panel’s findings over objections from both sides; however, the ALJ disregarded the additional 3% rating that was not reached using the AMA Guides Fifth Edition, leaving claimant with a related whole-person impairment of 20%. The ALJ ordered employer/carrier to pay claimant $2,676.96 for the additional 3% impairment rating; 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 (based on the additional $2,676.96 claimant’s attorney won for him in adjudication) and paid directly to claimant’s attorney.
Injuries --Claimant suffered an grade I open comminuted segmental tibia/fibia fracture of his left leg; he underwent external fixation and fasciotomy surgery and returned to the operating room three days later for irrigation and debridement with delayed primary closure of the open fasciotomy site. Three days later, he underwent a lateral complex exploration and repair of the lateral collateral ligament and an open reduction and internal fixation of the fibular head, as well as open reduction and internal fixation of a proximal tibiofibular joint dislocation. One month later claimant underwent an iliac crest bone graft to the tibia to correct a large defect in the proximal, mid- and distal tibia. He later developed cellulitis and pin-site infection; he had a peroneal nerve injury secondary to the initial injury and showed foot drop which slowly resolved. He underwent a later surgery to remove a 7-hole plate from his left distal fibula. A year later he underwent a left proximal tib-fib screw removal and exploration of the peroneal nerve necessitated by scarring of the nerve. Four months later, claimant underwent arthroscopic surgery and left proximal tibia-fibia joint fusion. Claimant had undergone previous bilateral knee arthroscopic releases as a teenager.
Attorney(s) - Plaintiff --Sandra N. Dredge of Dredge Lallatin, Provo
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--chair and neurologist; and Dr. Glenn Momberger--orthopedic surgeon.
Facts/Contentions --Claimant was injured while working in employer’s mine, when part of a wall collapsed on him. His employer accepted liability for the injury and paid benefits and medical expenses; however, a dispute arose between claimant and employer when claimant’s physician gave claimant a 27% related whole-person impairment rating and employer’s physician gave claimant a 17% related whole-person impairment rating. The parties agreed to waive a hearing and refer the matter directly to the medical panel. The question of permanent partial impairment was the only issue submitted to the panel.
The medical panel found claimant suffered a peroneal nerve injury with sensory impairment and has a foot-slap as he walks; his motion against resistance is small, and he has a complete range of motion against gravity only without resistance. The panel found a mild impairment of the range of motion in the knee and ankle. The panel noted that because of the severity of the injury, the abnormal stress and the multiple procedures claimant underwent, the ankle and hip have a very uncertain future, and accordingly added 3% to the related whole-person impairment rating. Taking all these factors into account, the panel gave claimant a 23% related whole-person impairment rating; however, the ALJ opined that the additional 3% added beyond the impairment ratings determined by using the American Medical Association Guides, Fifth Edition should be disregarded because the mandate of the medical panel limited its analysis to the Guides.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --(Name of case withheld)
Case Number --2001486
Court/Judge --Hann
Verdict/Settlement --Order, 12/03
Amount --The ALJ adopted the medical panel’s findings and ruled that a preponderance of the evidence supported the finding that only the medical treatment claimant received immediately after each of his two industrial injuries was necessitated by those injuries; however, the ALJ found claimant failed to prove he suffered any further injuries or impairment, and thus no further medical treatment was necessary. The ALJ therefore dismissed his claim for further benefits with prejudice.
Injuries --Claimant suffered a lumbar strain.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --Hans M. Scheffler
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Joseph Jarvis--chair and occupational medicine specialist; and Dr. Dennis Gordon--orthopedic surgeon.
Facts/Contentions --Claimant initially stated that he was injured when he fell off of a lift and hung by his safety belt, but his medical records indicated that he told his physicians only that he injured his back while lifting 100-pound boxes at work in employer’s warehouse. Claimant apparently suffered two separate lumbar strains, about six months apart, in this fashion. He was supposed to follow up with his treating physician, but did not do so. He was terminated from his job with employer a year after his first injury because of attendance problems.
Claimant’s employer noted that claimant told one doctor he injured his back moving furniture at home and then re-injured it at work. Employer contended that this re-injury did not meet the Allen test for extraordinary exertion. Utah case law (Allen vs. Industrial Commission) states that an injured worker seeking workers’ compensation benefits for aggravation of a pre-existing injury must prove that the work activities leading up to the re-injury exceeded those a person might encounter in everyday life.
Employer submitted surveillance video footage of claimant taken the day of his deposition, which showed him moving very slowly and using a walker as he went into and out of the building; however, just over two hours later he was filmed walking without using a walker and driving a car. Surveillance video footage taken the day after the deposition showed claimant walking fairly briskly, without using a walker, and walking farther than he stated at his hearing he was able to walk.
The medical panel found no medical causal connection between claimant’s condition and his industrial accidents.

DEATH BENEFITS CLAIM
Case Type --WD, WA; Dispute over work-related death benefits
Case Name --(Name of case withheld)
Case Number --20031063
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 12/03
Amount --The ALJ terminated widower’s death benefits with prejudice.
Injuries --Widower’s wife died in the course and scope of her employment.
Attorney(s) - Plaintiff --Widower was represented pro se.
Attorney(s) - Defense --For employer/carrier: Steven T. Densley of Strong & Hanni; for ERF: Lorrie Lima
Facts/Contentions --Widower was awarded death benefits for the work-related death of his wife in 1994.
Nine years after the award was made, while benefits were still being paid, employer/carrier filed an objection to widower’s declaration of dependency and moved for summary judgment terminating benefits, claiming that widower was no longer dependent on the death benefits. The ERF filed a motion to be dismissed from this action.
After these motions were filed, widower filed a statement that he no longer seeks death benefits.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --Elizabeth Rivera vs. Cornerstone Nutritional Labs and Clarendon National Insurance Company
Case Number --20021140
Court/Judge --Eblen
Verdict/Settlement --Order, 12/03
Amount --The ALJ found a preponderance of the evidence indicated that there was not a medical causal relationship between claimant’s fall injury and her need for surgery, since the cyst that required removal was caused by pre-existing trichinosis. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered a head injury.
Attorney(s) - Plaintiff --Danny Quintana of Quintana, York & Associates
Attorney(s) - Defense --Mark D. Dean of Blackburn & Stoll
Expert Witness(es) --Dr. Couldwell--treating surgeon
Facts/Contentions --Claimant slipped, fell and struck the back of her head at work. She was diagnosed at Rocky Mountain Care Clinic with a 3-cm contusion. She was released to return to work in four days, on the following Monday; however, on the Sunday before she was supposed to return to work she presented at a hospital emergency room complaining of a violent headache with one episode of vomiting. She was evaluated for a skull fracture and/or subarachnoidal hemorrhage, and a CT scan of her head revealed hydrocephalus of moderate severity with multiple arachnoid cysts. She was transferred to another hospital for a neurosurgical consult and shortly underwent surgery to remove a fourth ventricular cyst; the pathology report indicated neurocistericosis (cysts caused by tapeworm larvae situated in the tissue of an intermediate host). Claimant argued that her industrial fall caused the cyst to become symptomatic.
Employer/carrier paid for claimant’s treatment the day of her injury, but argued that her subsequent severe and increasing head pain was caused not by her fall at work, but by the pre-existing cysts, which are symptomatic of trichinosis. Dr. Couldwell wrote to the insurer’s nurse case manager, “The presentation may have been initiated by the fall, but the diagnosis was pre-existing.”

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Ulla Sponbeck vs. Granite School District (self-insured)
Case Number --2002102
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 12/03
Amount --The ALJ accepted the medical panel’s findings and ruled that claimant’s carpal tunnel syndrome, tenosynovitis and osteoarthritis were pre-existing. Since she sought benefits to pay for treatment begun three months after the industrial accident, and since the medical panel found the accident caused only stiffness and soreness which resolved within a few days, the ALJ dismissed the claim for these benefits with prejudice. The ALJ did, however, order the self-insured employer to pay for the treatment claimant received on the day of the accident.
Injuries --Claimant suffered a sprain-strain injury to her right thumb. She was later diagnosed with severe right carpal tunnel syndrome, tenosynovitis of the right wrist, and osteoarthritis at multiple sites.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Mark D. Dean of Blackburn & Stoll
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Joseph Jarvis--chair and occupational medicine specialist; and Dr. Dennis Gordon--orthopedic surgeon.
Facts/Contentions --Claimant was employed by self-insured employer as a first-grade teacher. She hung some bird-feeders outside her classroom, suspending them from the studs of an outside overhang. On the day she was injured, she was climbing up a ladder to get to one of the feeders. As she retrieved the feeder, the ladder jiggled, and claimant grabbed an overhead brace with her right hand. She hung by the right hand for approximately 20 seconds. After the incident, she experienced pain in the right side of her neck, her right shoulder, and her right arm. She claimed the carpal tunnel syndrome, tenosynovitis and osteoarthritis revealed by later diagnostic procedures were caused or else aggravated by her industrial accident.
Self-insured employer argued that claimant’s conditions were pre-existing. Employer also argued that claimant’s health care providers failed to file documentation as required by Utah law in workers’ comp cases; however, employer did not present any evidence at the hearing to back up this second claim.
The medical panel found the industrial accident caused “muscle stiffness and soreness, which lasted for a few days only.”

ORDER ON MOTION FOR REVIEW
Case Type --DS; Discrimination claim
Case Name --Kurt Blair vs. Utah State Department of Human Services
Case Number --8-00-0561
Court/Judge --This order was issued by the Appeals Board of the Utah Labor Commission. Board members: Colleen S. Colton, chair; Patricia Drawe; Joseph Hatch.
Verdict/Settlement --Order, 2/04
Amount --The Board granted the claimant’s motion for review and set aside the ALJ’s grant of summary judgment to the Department of Human Services on grounds that genuine disputes exist regarding the dates on which claimant allegedly suffered harm as a result of the Department of Human Services’ actions. The Board also felt disputed issues may exist regarding the possible continuity between the Department of Human Services’ initial actions in the matter and its later decision not to place claimant in a lead worker position. The Board remanded the case back to the ALJ for further proceedings consistent with this decision.
Attorney(s) - Plaintiff --Kenneth B. Grimes
Attorney(s) - Defense --Assistant Attorney General Glen E. Davies
Facts/Contentions --Claimant filed a discrimination complaint with the Utah Antidiscrimination and Labor Division (UALD) alleging that the Utah Department of Human Services withheld claimant’s promotion to lead worker because he has a disability. Claimant suffers from migraine headaches. UALD dismissed the claim on grounds that more than 180 days had elapsed between the time claimant last suffered harm and the time he filed his complaint; thus, UALD ruled, the UALD lacked jurisdiction under Utah law over claimant’s complaint. As is his right by law, claimant requested a de novo hearing of his complaint (starting as though the case had never been heard before) by an administrative law judge (ALJ) of the Labor Commission. The parties submitted argument but no evidence at the hearing.
The ALJ found claimant had failed to file his complaint within the 180-day limitation allowed by law for discrimination complaints (as noted above, the complaint must be filed within 180 days of the last date when the claimant allegedly suffered harm). The ALJ therefore granted a motion for summary judgment filed by the Department of Human Services and dismissed the claim in an order titled “Order on Motion to Dismiss.” Claimant requested a review of the ALJ’s decision by the Appeals Board as allowed by law.
The Appeals Board noted in its decision that the ALJ included findings of fact in her order as though an evidentiary hearing had taken place, although no evidence was actually presented at the hearing. The Board therefore determined that the ALJ’s order could not be considered to be a plenary determination of the jurisdictional facts because there was no evidentiary hearing held. Summary judgment is appropriate, the Board wrote, only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. The party against whom the motion is granted is entitled to have all the facts and evidence considered in the light most favorable to him or her. Though the evidence in this case was slight, the Board opined that when the evidence is considered in the light most favorable to the claimant, genuine disputes do exist. Consequently, the Board found, summary judgment is inappropriate until an evidentiary hearing has been held.

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --Alberta Cartwright vs. Pictsweet and Gab Robins
Case Number --2002232
Court/Judge --Eblen
Verdict/Settlement --Order, 2/04
Amount --The ALJ issued this final order awarding permanent disability compensation to claimant after issuing a preliminary order as required by law. The ALJ gave employer/carrier 10 days from the date of the preliminary order to notify the Labor Commission if they intended to submit a reemployment plan as is their right under Utah law. When employer/carrier did not submit such a plan within the time allowed, the ALJ issued this order.
The order required employer/carrier to pay claimant permanent disability compensation of $143 per week for the period beginning on 1/27/96 and continuing for 312 weeks, for a total of $44,616. When an offset is deducted for $10,814.28 already paid, a balance of $33,801.77 remains, which is to be paid to claimant immediately 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. Once the 312-week requirement is satisfied, employer/carrier must then pay claimant permanent total disability benefits of $208 per week for life, starting 1/21/02. Of this amount $12,866.25 is accrued and must be paid in a lump sum plus interest and minus attorney’s fees as detailed above. Attorney’s fees shall include 10% of the interest generated on the first 312 weeks of compensation up to the maximum fee of $10,352. If claimant is receiving or begins to receive Social Security retirement benefits, a reduction in these benefits may be taken by employer/carrier as allowed by Utah law.
Injuries --Claimant suffered a low back injury which left her permanently and totally disabled. She was awarded a 13% related whole-person impairment rating because of the two surgeries she underwent after her industrial injury. She is permanently restricted to no lifting over 20 pounds and no repetitive stooping, bending or crawling. The ALJ determined that claimant lacks vocational skills which she could use to transfer to other work in the local economy. Her employer attempted to rehabilitate her by sending her to English classes, but she has not been able to find other work in the community.
Attorney(s) - Plaintiff --Aaron J. Prisbrey, St. George
Attorney(s) - Defense --Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Facts/Contentions --Claimant worked in employer’s mushroom-growing and -packing operation in Fillmore. She suffered a fall at work which injured her low back.
Claimant is a native of Mexico, where she received the equivalent of a third-grade education. She speaks almost no English, does not read or write English and does not have a driver’s license. Her work experience is limited to the two and a half years she spent at the mushroom plant. Her work there required occasional lifting of more than 50 pounds; she said it was “hard and you had to hurry.”
Legal Issues --During the first 312 weeks, disability compensation is calculated based on claimant’s marital status, number of dependents, hours worked per week and weekly wage at the time of the industrial injury. After the initial 312 weeks, compensation is paid at the rate of 36% of the state’s average weekly wage, rounded to the nearest dollar.

ORDER ON INTERLOCUTORY MOTION FOR REVIEW
Case Type --WA; Work-related injury
Case Name --Karen S. Fullmer vs. K-Mart and Cambridge Integrated SRV Group
Case Number --03-0383
Court/Judge --This order was issued by the Appeals Board of the Utah Labor Commission. Board members: Colleen S. Colton, chair; Patricia Drawe; Joseph Hatch.
Verdict/Settlement --Order, 2/04
Amount --The Appeal Board noted in its order on this motion that such interlocutory reviews “diminish the ALJ’s ability to organize and manage evidentiary hearings, disrupt the adjuticatory process, and delay the resolution of claims.” The Board therefore grants motions for such interlocutory reviews only if its members feel the potential advantage from deciding the issue presented will clearly outweigh the interruption of the hearing process and the other costs of piecemeal review. The Board noted that any errors made in the preliminary findings will likely be either corrected or rendered moot by further developments in the case. The Board therefore denied the interlocutory motion for review.
Attorney(s) - Plaintiff --Virginius C. Dabney of Dabney & Dabney, St. George
Attorney(s) - Defense --David H. Tolk of Richards, Brandt, Miller & Nelson
Facts/Contentions --Claimant stated that she was injured at work, and after she filed this claim and a hearing was held, the ALJ issued preliminary findings. The employer and its insurance carrier filed an interlocutory motion asking the Appeals Board to review the ALJ’s preliminary findings, alleging that errors were made in them.

ORDER ON MOTION
FOR RECONSIDERATION
Case Type --DS; Discrimination claim
Case Name --Barthel W. Huff vs. Southern Utah University
Case Number --8-02-0008
Court/Judge --This order was issued by the Appeals Board of the Utah Labor Commission. Board members: Colleen S. Colton, chair; Patricia Drawe; Joseph Hatch.
Verdict/Settlement --Order, 2/04
Amount --The Appeals Board noted in its order regarding this request for review that this complaint could not be summarily dismissed if claimant presented any evidence which a rational person might find strong enough to discredit the evidence the University presented in its attempt to prove that its reasons for hiring other candidates were lawful and nondiscriminatory. However, the Board noted, under Utah law a potential employer has the right to choose from among several qualified candidates as long as the basis for choice is not unlawful (i.e. discriminatory). “Although the employee, and even the judge, may believe the employer misjudged the qualifications of the applicants, that does not, without more, subject the employer to liability under the Utah Antidiscrimination Act,” the Board quoted from the Utah Supreme Court’s decision in University of Utah vs. Industrial Commission. The Board found that the evidence presented by the University to explain the nondiscriminatory reasons behind its hiring decisions were reasonable and believable, and claimant did not present any evidence which a reasonable person might find strong enough to discredit the University’s explanation. The Board therefore declined to reconsider its decision and concluded that the granting of summary judgment was proper.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Assistant Utah Attorney General Bless Young
Facts/Contentions --Claimant contended that S. U. U. discriminated against him on the basis of age when it declined to hire him for two faculty positions at the University and hired younger candidates instead. After the Utah Antidiscrimination and Labor Division (UALD) ruled against him, claimant requested a de novo hearing by an ALJ of the Labor Commission as allowed by Utah law. An evidentiary hearing was held at which the University presented evidence indicating that its choices were predicated on other factors than claimant’s age, and the ALJ granted the University’s motion for summary judgment, dismissing this claim. Claimant requested review by the Appeals Board. On review, the Appeals Board upheld the ALJ’s decision. Claimant then asked the Appeals Board to reconsider its earlier finding, claiming that various issues regarding his qualifications and those of one of the successful candidates were in dispute and these disputed issues should preclude an award of summary judgment.

ORDER ON MOTION FOR REVIEW
Case Type --WA, WD; Work-related death benefits claim
Case Name --Charles Patterson (deceased) vs. Security National Life and Workers’ Compensation Fund
Case Number --01-0555, 03-0144
Court/Judge --This order was issued by the Appeals Board of the Utah Labor Commission. Board members: Colleen S. Colton, chair; Patricia Drawe; Joseph Hatch.
Verdict/Settlement --Order, 2/04
Amount --The Appeals Board reviewed the record, which indicated that the motion for review was not received until 32 days after the ALJ’s decision was issued. Utah law allows a party dissatisfied with an ALJ’s decision to request review of the decision if the request is filed within 30 days of the date of the decision. A motion for review is not considered to have been filed until it has actually been received by the Labor Commission. The Appeals Board therefore dismissed the motion for review as untimely.
Attorney(s) - Plaintiff --David Parker
Attorney(s) - Defense --Floyd Holm
Facts/Contentions --Claimant’s widow filed a claim for death benefits after her husband died; she claimed she was entitled to benefits because her husband’s death was industrially related. An ALJ of the Labor Commission dismissed the claim for benefits, and the widow filed a motion for review, contending that the issues in the case should have been submitted to a medical panel.

WORK INJURY
Case Type --WA, SI; work-related repetitive stress injury
Case Name --Eris Petersen vs. Newspaper Agency Corporation and/or Lumbermen’s Underwriting Alliance and/or Workers’ Compensation Fund
Case Number --2001088, 2001089
Court/Judge --George
Verdict/Settlement --Order, 2/04
Amount --The ALJ accepted the medical panel’s report and adopted its findings as his own. The ALJ therefore ordered Lumbermen’s to pay claimant accrued temporary total disability benefits for all the time he was off work as a result of both his back injuries, with credit for any amounts previously paid by WCF; these amounts 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. Lumbermen’s must reimburse WCF for all benefits WCF paid claimant in connection with the final surgery. Lumbermen’s was further ordered to pay claimant accrued benefits of $15,752.88, with credit for any amounts previously paid, for his permanent impairment, plus interest and less attorney’s fees as detailed above. Lumbermen’s must pay all of claimant’s reasonable and necessary related medical expenses in the future.
Injuries --Claimant suffered two low back injuries pertinent to this claim and underwent a total of four surgeries: a laminectomy and discectomy at L5/S1 (performed as the result of an industrial injury suffered before he went to work for NAC), a discectomy at L4, an additional surgery at L4, and a discectomy at L3/4, L4/5 and L5/S1. His medical providers and evaluators disagreed on the causal relationships between the various surgeries and claimant’s work activities.
Attorney(s) - Plaintiff --David Parker
Attorney(s) - Defense --For NAC/Lumbermen’s: Michael E. Dyer of Blackburn & Stoll; for NAC/WCF: Eugene C. Miller Jr.
Expert Witness(es) --The issues in this case were referred by the parties directly to a medical panel.
Facts/Contentions --Claimant contended that his two back injuries in 1997 and 2000 were caused by his lifting large, heavy bundles of newspapers over long periods of time in the course of his work for employer.
At the time of claimant’s first injury, employer was insured by Lumbermen’s. Lumbermen’s admitted that the accident occurred, but claimed that Workers’ Compensation Fund, the insurer of record at the time of the second injury, should be responsible for all benefits because of the occurrence of the second injury in the intervening time period. Workers’ Compensation Fund denied all liability for both injuries on grounds that the records of its industrial clinic, Healthsouth, did not indicate any specific injury or re-injury to claimant’s back on the dates when he indicated they occurred. Claimant had a pre-existing low back condition caused by an injury incurred while he was working for a lumber company; he had a previous surgery before any of those detailed here.
A hearing was scheduled, and in a conference between the parties, WCF agreed to pay for claimant’s most recent surgery and authorized payment of temporary total disability benefits at the 1997 rate. While claimant was recovering from surgery, a telephone conference was held at which the parties agreed to waive the hearing and refer the disputed issues, which were all medical, directly to a medical panel.
The medical panel found that claimant had a 10% whole-person permanent impairment preceding his first industrial accident at NAC (the one where Lumbermen’s was the insurer of record). The panel also found that claimant has an additional 17% whole-person impairment solely as a result of the first NAC accident. The panel found claimant does not have any further whole-person impairment as a result of the second NAC accident, and the second accident was not the cause of any of claimant’s time off work, past medical expenses or any future medical expenses.
Lumbermen’s objected to the medical panel’s report. The ALJ dismissed the objections on grounds that the medical record did not support Lumbermen’s claims and that just because the panel did not reference a specific document (i.e. the MRI and Dr. Prasad’s report, which Lumbermen’s admitted were both in the packet sent to the medical panel) does not mean that the panel did not review the documents.
WCF claimed that the 2000 injury (where WCF was the insurer of record) was the result of the 1997 injury (where Lumbermen’s was the insurer of record). The medical panel essentially found that the 2000 injury was simply a re-aggravation of the primary and continuing injury resulting from the 1997 accident.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Holly S. Thompson vs. Lakeview Hospital and Transportation Insurance
Case Number --20021164
Court/Judge --Hann
Verdict/Settlement --Order, 2/04
Amount --The ALJ dismissed this claim with prejudice on grounds that because claimant was offered light duty work that matched her work restrictions, and because she chose not to accept but instead tendered her resignation, her employer’s liability for further temporary total disability benefits ceased when she was released to light duty work.
Injuries --Claimant suffered a low back injury and eventually underwent surgery.
Attorney(s) - Plaintiff --Michael Gary Belnap, Ogden
Attorney(s) - Defense --Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) - Plaintiff --Dr. Oka; Dr. Morgan; Dr. Stromberg--treating physicians
Damages --Employer/carrier paid for claimant’s surgery and also paid her temporary total disability benefits while she was recuperating, as well as permanent partial disability benefits for her permanent partial impairment.
Facts/Contentions --Claimant was working as a physical therapy aide, helping a patient to do stair exercises, when the patient lost her balance and began to fall. Claimant stated that she grabbed the patient, who weighed over 200 pounds, in a bear-hug to keep her from falling, at which point she took the patient’s full weight. Claimant stated that she felt and heard a pop in her neck, which she reported. She sought treatment after her pain worsened. Although she resisted the idea of surgery, in the end she agreed to undergo surgical repair of her neck. She was placed on light duty restrictions before the surgery, and her employer provided her with light duty work; however, she resigned before the surgery, stating that she found it frustrating not to be able to carry out her normal work duties. In her letter of resignation, claimant stated that she was aware she had a permanently debilitating injury, was concerned over the potential for further injuries if she stayed in her current job, had experienced ongoing pain even when working light duty, felt frustrated by her debility, and was aware that she would never return to her pre-injury condition.
Claimant sought benefits for future medical expenses, temporary total disability and permanent partial disability. Employer/carrier contended that since claimant had left her job voluntarily, employer/carrier had paid claimant all the benefits to which she was entitled.
The ALJ noted in her opinion that under Utah law an employer’s liability for temporary total disability benefits ceases when an employee is released to return to light duty work if the employee is offered work that falls within those light duty specifications. Both employer and claimant agreed that claimant was offered light duty work that confirmed to her work restrictions. Claimant admitted that her employer paid her permanent partial disability benefits for her whole-person impairment, as well as her medical expenses for the surgery. In light of these facts, the ALJ wrote, claimant is not entitled to any further workers’ compensation benefits from her employer.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Rebecca Cibulka vs. Wal-Mart and National Union Fire Insurance
Case Number --2001427
Court/Judge --Hann
Verdict/Settlement --Order, 2/04
Amount --The ALJ adopted the medical panel’s findings and ordered employer/carrier to pay claimant $2,068.56 in accrued permanent partial disability benefits for her industrial 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.
Injuries --Claimant suffered a neck strain and also suffers from pre-existing somatoform pain disorder. The medical panel awarded claimant a 3% related whole-person impairment rating.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Expert Witness(es) - Plaintiff --The parties waived a hearing and agreed to submit the issues in the case directly to a medical panel consisting of Dr. Alvin Wirthlin--neurologist and chair; Dr. Glenn L. Momberger--orthopedic surgeon; and Dr. Robert H. Burgoyne--psychiatrist.
Facts/Contentions --Claimant stated that she injured her neck in an accident at work.
Employer/carrier admitted that the incident occurred, but denied liability, contending that claimant suffered only a temporary neck strain which resolved without treatment.
The medical panel found claimant suffered a cervical/thoracic strain. The panel agreed that it would be impossible to determine whether this incident triggered claimant’s pre-existing somatoform pain disorder; instead, the panel focused on the fact that before the industrial accident, claimant did not have the constellation of symptoms she now exhibits. The panel concluded that claimant should receive a 3% related whole-person impairment rating and that she does not require any further treatment for this injury, even in light of her subsequent diagnosis of sleep apnea.

WORK-RELATED ASSAULT
Case Type --WA, BT; Work-related assault claim
Case Name --(Name of case withheld)
Case Number --2003821
Court/Judge --George
Verdict/Settlement --Order, 3/04
Amount --The ALJ quoted from the Utah Supreme Court decision in Spring Canyon Coal Company vs. Industrial Commission of Utah (1921), which arose when an employee working in a mine was attacked and killed by an insane fellow-worker. In that case, the court noted, “The felonious assault which was made upon the deceased was without any excuse. The affair was purely personal, with no reference to employment. [The two workers] happened to be at the same place because of their employment, but an injury done by one to another on account of some purely personal grudge which this proximity gave an opportunity to inflict was not a result of the employment.”
The ALJ himself wrote, “Whether or not petitioner was really having an affair with a person in the work environment is of no more consequence to resolution of this workers comp claim than it was to President Clinton’s impeachment.” However, the ALJ continued, “An act motivated by such purely personal reasons [as jealous rage] is wholly unrelated to applicant’s employment.” The ALJ added that getting to work on time or early because you have the first work assignment does not suddenly transform getting to work into being within the course and scope of your employment, “with attendant workers compensation liability for all that may happen on the way.” Furthermore, the public street was not a part of employer’s premises, and claimant’s decision to park there was his own free choice and not a requirement of his employment. The ALJ therefore ruled that the shooting occurred outside the course and scope of claimant’s employment and was thus not a compensable injury; he granted employer/carrier’s motion for summary judgment and dismissed this claim with prejudice.
Injuries --Claimant suffered unspecified serious injuries and was permanently impaired.
Attorney(s) - Plaintiff --Loren M. Lambert of Arrow Legal Solutions
Attorney(s) - Defense --David H. Tolk of Richards, Brandt, Miller & Nelson
Damages --Claimant sought benefits for medical expenses, recommended medical care, temporary total disability for the time he was off work, permanent partial disability for his permanent impairment, travel expenses and interest.
Facts/Contentions --Claimant worked as a line manager in employer’s document-shredding business. He was required to clock into work every day, and his pay was calculated on the basis of the hours he worked as verified by the time clock. He did not ever take any work home with him. He stated that he had not yet clocked in after arriving at work on the day he was injured. He said he was driving down 300 West in Murray, intending to park his car on the street in front of the company when he arrived, as he did regularly. He added that many employees parked on the street, although there was an employee lot to the northwest of the office area, because it was easier to enter the building through the only entrance, a gated area, if they parked in front. Claimant said he was expected to be at work on time because he was the one who unlocked the gate every day so the other employees could enter. Claimant stated that as he was driving down the street, a man with a gun jumped out at him and shot him several times through the driver’s-side window of his car, which was still moving when the shooting began. A co-worker saw the incident and ran over to assist claimant after the shooter ran away. The co-worker drove claimant in her car to a nearby clinic for treatment of his gunshot wounds. The co-worker later told police investigators that the shooter was her husband.
Employer/carrier moved for summary judgment, claiming that the police investigation brought out the fact that the shooter believed his wife (claimant’s co-worker) and claimant were having an affair. Because of this fact, employer/carrier contended that the shooting did not occur within the scope of claimant’s employment, stemming as it did from causes rooted outside work and taking place when claimant had not yet clocked into work. (Claimant did not clock into work at all that day as a result of the injuries he received in the shooting.) Employer/carrier admitted that claimant was expected to be on time each day in order to unlock the gate, but argued that the shooting was still not work-related because claimant was not in the act of unlocking the gate when he was shot.
Claimant said he and co-worker had worked together in the same department for at least three years. Claimant was the only man who worked in the warehouse, and occasionally he asked the co-worker to help him drive the forklift. On one occasion prior to the shooting, claimant went to buy food with the co-worker. Claimant denied having an affair with the co-worker; however, he did state that he believed the assailant shot him “in a jealous rage.”

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Gary H. Edelstein vs. Spraylat Corporation and/or Liberty Mutual Insurance Company
Case Number --20021183
Court/Judge --Marlowe
Verdict/Settlement --Order, 3/04
Amount --The ALJ stated in her opinion that because 1) Dr. Barton’s initial release was only from driving and not from working; 2) claimant did actually continue to work for two days after the incident until he quit for reasons unrelated to his health condition; 3) claimant undertook to travel extensively approximately two weeks after he was injured; and 4) Dr. Moress allowed two weeks for a simple soft tissue contusion to be reasonably healed, she found it reasonable to conclude that claimant stabilized medically two weeks after the accident. She therefore found claimant was entitled to 10 days of temporary total disability compensation and ordered employer/carrier to pay him accrued benefits of $802.86 in a lump sum plus interest.
Injuries --Claimant suffered a hip injury; the extent and duration of his temporary disability were disputed.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Lewis J. Barton
Expert Witness(es) - Defense --Dr. Gerald R. Moress
Facts/Contentions --Claimant did outside sales work for employer, covering the territories of Nebraska and Utah and driving 300 to 500 miles every week. Claimant was injured on a Friday. He normally had Saturdays and Sundays off, and he took the weekend off as usual and returned to work on the Monday after he was injured. He also came to work on the next day, Tuesday, but sought medical care that day from Dr. Barton, who gave him a restriction of no driving for 10 days. Claimant quit the next day after a dispute with a manager regarding his claim. Claimant went back to Dr. Barton the day following his termination, and Dr. Barton restricted him from driving for five weeks. The summary of medical records, dated November 24, 2004, indicated that Dr. Barton released claimant to work on October 15, 2002. Claimant contended that this date was a month too early as the result of a mistake made by Dr. Barton’s office. Claimant contended that he did not reach medical stability until November 15, 2002, six weeks after he was injured, and he sought temporary total disability for that time period. Claimant testified that when he got a new job at the end of October 2002, he signed an agreement with his new employer stating that he would start work once he received his medical release, and that was what he did.
Employer/carrier stated that they attempted to get Dr. Barton’s office to clarify the release date in the summary, but met with little success as the resulting document was undated and therefore useless from an evidentiary standpoint. Employer/carrier contended that claimant was walking without a limp much earlier than he claimed he was, and they produced a surveillance video which they claimed proved this argument. Employer/carrier hired Dr. Moress to perform an independent medical examination of claimant after his injuries had resolved. Dr. Moress stated that he normally allows two weeks for a soft tissue contusion to heal; therefore the doctor concluded that claimant’s date of maximum medical improvement should have occurred two weeks after he was injured. Employer/carrier pointed out that two weeks after he was injured, claimant flew to El Paso to look for work and then flew home again five days later. He took a bus to Denver four days after returning from El Paso; this trip lasted four days. Employer/carrier admitted that claimant, who was under surveillance during this time, did not drive at all, but used taxi services on both these trips. About three weeks after he was injured, claimant began driving himself for short distances, such as trips to the pharmacy and the market.
The ALJ was unimpressed by the surveillance videotape, which only showed a very blurry view of claimant taking two or three steps through the airport door. The ALJ also noted, however, that Dr. Barton’s releases were in different handwriting with different signatures, leading the ALJ to conclude that while they were probably not fraudulent, they demonstrated that Dr. Barton was not heavily involved with claimant’s case. Dr. Barton saw claimant only once for the injury at issue. The ALJ further noted that Dr. Moress did not see claimant until well after his injury had resolved; the ALJ felt Dr. Moress relied heavily on the videotape in forming his opinion, but the videotape did not support his conclusions. “It does not appear,” the ALJ wrote, “that either doctor’s opinion is well-supported by the facts.” Because the disputed period of possible temporary total disability was only 29 days, the ALJ was not required to send this case to a medical panel.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Larry Flament vs. Pride Transport and/or Business Insurance Company
Case Number --98814
Court/Judge --George
Verdict/Settlement --Order, 3/04
Amount --Over claimant’s objections, the ALJ accepted the medical panel’s report and dismissed the claim for benefits involving claimant’s cervical problems with prejudice on grounds that claimant failed to prove his cervical symptoms were caused by his industrial injury.
Injuries --Claimant suffered injuries to his cervical and lumbar spine. He underwent lower back surgery. Five weeks after his industrial injury, he presented at an emergency room in Burley, Idaho, with shortness of breath and crushing chest pain extending through to his back and down his left arm. He also reported arm numbness. He later claimed that this numbness resulted from cervical problems rather than a heart attack, phlebitis with a small pulmonary embolus, or pneumonia, all of which his treating physicians postulated as possible causes of his symptoms; employer/carrier contended that these explanations were all more likely than claimant’s theory. Employer/carrier declined to pay claimant benefits for his cervical spinal problems. Claimant was released to return to work after his lumbar spinal surgery, but was taken off work again due to subjective complaints of pain. He started a course of physical therapy a month later, but discontinued it after four sessions, complaining that lifting over 10 pounds gave him headaches. On the basis of a functional capacity evaluation, the temporary total disability benefits employer/carrier was paying claimant for his lumbar spinal injury were discontinued a little over three months later.
Attorney(s) - Plaintiff --K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense --Brad C. Betebenner and Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel.
Facts/Contentions --Claimant stated that he injured his neck and back while unloading frozen products from a semi-trailer. He said he fell several times while unloading the products and was working in a very cold refrigerated trailer. Both times, when he fell, he landed directly on his right hip, and that was where he said the pain was centered.
Employer/carrier admitted provisional liability for the injury and offered to pay claimant permanent partial disability benefits for a 10% related whole-person impairment; however, they refused to accept liability for claimant’s continuing headaches and cervical problems because, they claimed, no cervical symptoms surfaced until six months after the industrial injury. Claimant’s statement, according to his physician’s first report of illness or injury, was that he hurt his lower back and right leg while unloading his truck.
There was no medical documentation contemporaneous with the accident indicating that claimant complained of any problems with range of motion or pain in his cervical spine, head, shoulder or arm at the time when he first reported the injury and sought medical treatment.
The medical panel found no causal connection between claimant’s headaches, arm pain and numbness, and other cervical complaints and his industrial injury.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Karen Fullmer vs. K-Mart and/or Cambridge Integrated Services
Case Number --2003383
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 3/04
Amount --The ALJ noted that claimant had never had any back pain at L3/4 before this incident; her previous problems were at L5/S1. The ALJ accepted the uncontroverted medical opinion of claimant’s treating physicians that the industrial accident with the mountain bike caused claimant’s renewed back problems. The ALJ found that the work activities which caused claimant’s re-injury exceeded those a person might encounter in everyday life (the Allen test; the Utah supreme Court ruled in Allen vs. Industrial Commission, 1986, that in order to qualify for benefits in connection with an industrial re-injury, a claimant must prove that the work activities leading up to the injury exceeded those a person might encounter in everyday life). Furthermore, the ALJ noted, even if the re-injury did not qualify claimant for benefits, her previous back problems were associated with an industrial injury she sustained while working at K-Mart, so K-Mart would be liable for benefits in connection with this re-injury even if claimant had not met the Allen test. As a final proof of legal causation, the ALJ wrote, the store manager knowingly ordered claimant to engage in activities that exceeded her medically prescribed restrictions despite her protests. A person would not generally engage in activities outside prescribed restrictions of her own free will in everyday life; therefore, when the manager ordered claimant to engage in such activities, he forced her outside the scope of everyday life exertion. The ALJ ordered employer/carrier to pay claimant $18,959.63 in accrued temporary total disability benefits, plus interest and less attorneys’ fees, which are to be deducted from this award and paid directly to claimant’s attorneys on a pro-rated basis. The ALJ also ordered employer/carrier to pay claimant ongoing temporary total disability compensation in the amount of $353 per week until she reaches medical stability or until the 612 weeks of compensation mandated by Utah law for such benefits have been paid. Employer/carrier must also pay all related medical expenses, including, but not limited to, those for the surgery recommended by Dr. Delcore.
Injuries --Claimant re-injured her lower back. She had undergone three previous lumbar surgeries at L5/S1 and had herniated a disc at L4/5, but her medical record did not show any claims of back pain from the time the hardware was removed from her lumbar spine (following the third surgery in 1998) until this incident. Her health care providers diagnosed her with a right-sided disc herniation at L3/4 following the episode at K-Mart. Though doctors had previously noted some degeneration at that level, there was no evidence of herniation prior to the K-Mart accident. Dr. Delcore has recommended surgery to repair this re-injury.
Attorney(s) - Plaintiff --Virginius C. Dabney of Dabney & Dabney, St. George; then Rick Bonewell of Bonewell Morris, St. George
Attorney(s) - Defense --David H. Tolk of Richards, Brandt, Miller & Nelson
Expert Witness(es) - Plaintiff --Dr. Berndt Schmidt--MRI physician; Dr. Philip Smith--treating physician; Dr. Randy Delcore--treating surgeon
Facts/Contentions --Claimant stated that she was working as a department manager at the Cedar City K-Mart when the store manager called all department managers to assist in moving bicycles. Claimant said she told the manager she had lifting restrictions because of a prior back fusion at L5/S1, but he insisted that she help move the bikes. Claimant said the store manager gave her a heavy, man-sized mountain bike to carry down some steep, narrow, irregularly sized wooden stairs. As claimant rolled the mountain bike down the stairs, she stated, it got away from her, endangering an employee immediately below. Claimant said she jerked and twisted the bike back by the handle-bars, with one foot on the stairs and the other foot off the stairs. As she jerked the bike back toward her, claimant stated, she experienced immediate pain in her low back that radiated down her right hip and leg. Claimant said she told the store manager about the accident and he told her to wait for the company medical person. Eventually, the store manager allowed claimant to see her own doctor. Claimant’s previous back problems also stemmed from a work-related incident at K-Mart, when all employees were called to help unload freight in the course of an “all hands on deck” program.
Employer/carrier contended that there was no legal causal relationship between claimant’s activities at work and her renewed back problems.

DEATH BENEFITS CLAIM
Case Type --WA, WD; Work-related death benefits claim
Case Name --Angelina Jimenez; Nolan Bullethead; and Kneale Bullethead Jr. vs. Ute Indian Tribe and Workers’ Compensation Fund
Case Number --20021307
Court/Judge --Hann
Verdict/Settlement --Amended order, 3/04
Amount --The ALJ noted that after she issued her order awarding benefits to decedent’s dependents, WCF notified the Commission that an error had been made in computation of these benefits. The ALJ re-calculated the benefits and issued this amended order changing the amount to be paid weekly to decedent’s dependents from $152 to $147 for the period between decedent’s death date and the day before the birth date of decedent’s posthumous son, Kneale Bullethead Jr.. In the amended order, the ALJ left the benefit payments at $152 for the period between the birth date of decedent’s posthumous son, Kneale Bullethead Jr., and the end of the initial 312-week period mandated for such benefits by Utah law. Benefits for the first time period totaled $2,163, and benefits for the second time period totaled $45,187.43; the combined total of benefits, $47,350.43, is due and payable to decedent’s dependents. The ALJ incorporated the rest of the substance of her earlier order into this amended order.
Injuries --Kneale Bullethead Sr., husband of Angelina and father of Nolan and Kneale Jr., was killed in the course and scope of his employment with the Ute Indian Tribe.
Attorney(s) - Plaintiff --Claimants were represented pro se.
Attorney(s) - Defense --Hans M. Scheffler

FALL
Case Type --WA, SF; Work-related slip/fall
Case Name --Marwin Ahala vs. Wendy’s Old-Fashioned Hamburgers and/or ACE USA
Case Number --2002380
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 4/04
Amount --The ALJ found that claimant, who provided no invoices for personal care services performed for him at home and no confirming testimony from the provider, failed to prove his case regarding benefits due for personal care he received at home while he was disabled. Since claimant did not provide any evidence regarding his hospitalization in Kuwait, the ALJ also found that he failed to prove that claim as well. The ALJ found that because claimant never reached medical stability, the issue of permanent partial disability (permanent impairment) was unripe for adjudication. However, the ALJ found the medical record supported claimant’s contention that he had not stabilized medically and was entitled to ongoing temporary total disability benefits. The ALJ ordered employer/carrier to pay claimant accrued temporary total disability benefits for the period in question in the amount of $37,511.43 plus interest and less attorney’s fees, which are to be deducted from this amount and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses, including those for the recommended surgery, and must continue to pay claimant $554 per week (less attorney’s fees) in temporary total disability compensation until he reaches medical stability.
Injuries --Claimant suffered a large left-side disc herniation at C4/5. Dr. Shepard gave claimant a 3% related whole-person impairment rating.
Attorney(s) - Plaintiff --David J. Holdsworth
Attorney(s) - Defense --Bret A. Gardner of Blackburn & Stoll
Expert Witness(es) - Plaintiff --Dr. Douglas Shepard; Dr. Blake Welling; Dr. Al-Sadat; Dr. Chowdhury
Expert Witness(es) - Defense --Dr. Stephen Marble
Facts/Contentions --Claimant slipped in a puddle of grease and water while working for employer as an assistant manager. He landed on his head and left shoulder. After the accident he complained of headaches, left shoulder pain, low back pain and neck pain. Only the neck problems were considered relevant to the present case. Claimant and employer/carrier reached a settlement agreement which provided for a lump sum payment plus ongoing temporary total disability benefits payments until claimant reached medical stability; however, eight months later claimant filed a motion to enforce the settlement agreement, claiming that he was owed further temporary total disability benefits. He claimed he needed surgery, received necessary medical care while he was in Kuwait, and needed assistance at home to perform the tasks of everyday living.
Employer/carrier contended that they had not breached the settlement agreement because they had paid claimant all the benefits to which he was entitled. They argued that claimant had reached medical stability, should not have needed extra medical care while he was in Kuwait, did not need assistance at home, and did not require surgery as a result of his industrial accident.
Medical records contained no references to any cervical spinal problems experienced by claimant until after the accident at Wendy’s. Claimant was 22 at the time an MRI revealed a large disc bulge at C4/5 following the accident. Dr. Welling recommended an anterior cervical discectomy and fusion, and opined that the injury was a result of the work accident. Dr. Shepard originally stated that he was not sure if surgery was indicated as a result of the industrial accident, but later concluded that if radicular findings were present and persistent despite appropriate conservative care, surgery would be a valid option. Dr. Marble, employer/carrier’s own expert, stated that claimant’s neck pain resulted from his industrial injury and that he had not stabilized medically. Dr. Al-Sadat stated that given the severity of claimant’s injury, he was unable to do his daily activities and needed assistance at home; he also recommended surgical repair of the injury. Dr. Chowdhury recommended that claimant receive medical treatment while he was in Kuwait, and claimant stated that doctors there hospitalized him for two days as a result of his neck problems. The medical record showed that claimant’s problems worsened steadily after his injury.

DISCRIMINATION CLAIM
Case Type --WA, DS; Work-related discrimination claim
Case Name --Kurt Blair vs. Utah Department of Human Services
Case Number --8000561
Court/Judge --Eblen
Verdict/Settlement --Order, 4/04
Amount --The ALJ dismissed this claim for failure to prosecute and cancelled the pre-hearing conference.
Attorney(s) - Plaintiff --Unknown (withdrew after claim was filed)
Attorney(s) - Defense --Assistant Attorney General Glen E. Davies
Facts/Contentions --Claimant, who lived in Moab, claimed his employer discriminated against him, and after he filed this claim a pre-hearing conference was scheduled. However, a month before the scheduled conference, the ALJ received a notice of withdrawal from claimant’s attorney, who had been unable to contact claimant. Claimant’s telephone numbers had been disconnected, and the attorney received no answer to mail sent to claimant’s last known address. The notice of the pre-hearing sent to claimant by the Commission was returned as undeliverable; claimant had moved and left no forwarding address. Finally, the EEOC dismissed the discrimination claim filed with them on grounds that the information the EEOC had been able to obtain in the case did not indicate violation of any statutes. On these grounds the ALJ concluded that claimant had failed to prosecute his claim.

FALL
Case Type --WA, SF; Work-related fall
Case Name --(Name of case withheld)
Case Number --2003167
Court/Judge --Eblen
Verdict/Settlement --Order, 4/04
Amount --Under Utah law, the ALJ noted, an award to an injured employee may be reduced by 15% if the employee failed to use safety devices provided by the employer, failed to follow a safety policy instituted by the employer, or was shown by medically accepted tests to have used a controlled substance at work without a prescription at the time of the accident if such use was the major contributing cause of the accident. The ALJ found the evidence did not show that claimant appeared impaired in any way the morning of the accident, and since no blood test was done there was no way to ascertain whether he was intoxicated; cannabinoids in the urine do not cause or indicate intoxication. The ALJ therefore found no connection between claimant’s use of marijuana the night before he fell and the accident; the drug use was therefore not the major contributory cause of the accident. However, the ALJ concluded that claimant willfully and knowingly failed to use his safety harness the morning of the accident. The ALJ therefore reduced the award of benefits made to claimant by 15%. The ALJ ordered employer/carrier to pay claimant accrued temporary total disability benefits of $16,829.89 plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney; this amount was reduced from a larger award as a penalty for claimant’s failure to wear his safety harness. Employer/carrier must continue to pay temporary total disability benefits to claimant in the amount of $385 per week (less attorney’s fees; this amount was reduced from $453 per week as a penalty for claimant’s failure to use his safety harness) until he reaches medical stability.
Injuries --Claimant suffered a plateau fracture of the left tibia and fibula; he also experienced pain in his neck, mid-back and low back.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Hans M. Scheffler
Facts/Contentions --Claimant worked as a journeyman carpenter/framer for employer. The weather was cold and a trace of snow had fallen when he reported for work on a five-storey building under construction. He made several trips up and down two flights of stairs and two ladders to move equipment and power cords from the gang box at ground level to the fifth floor where he was working. He said at his hearing that he was wearing long johns, pants, coveralls, a parka with a hood and a hard hat; he said he had taken off his safety harness to remove a layer of this clothing as he warmed up and forgotten to put it back on. He later vaguely recalled a conversation with an insurance adjuster a month after this accident in which he stated that he could not wear his harness to work in because the tether was not long enough. The tether was three and a half feet long, and the adjuster stated at the hearing that there were several places to tie a tether near where claimant was working at the time of the accident. Claimant said he was installing a P track to hold steel clips intended to support a stud wall around the edge of an opening; the track slipped and claimant fell forward through the wall. He thought he struck his leg on the safety railing; he fell to the floor one level (about 9 feet as measured by OSHA) below the one where he was working.
Employer/carrier paid claimant’s medical bills, but denied liability for further benefits on grounds that a urine test at the hospital where claimant was transported after the accident revealed a cannabinoid level of 241 nanograms per milliliter. No blood test was performed. Employer/carrier claimed that under Utah law, an employer is not responsible for paying benefits to a worker injured in an industrial accident if use of a controlled substance was the major contributory cause of the accident. Employer/carrier contended that claimant forgot to put his safety harness back on because he was under the influence of marijuana.
Claimant denied being “under the influence” at the time he fell. He said he had a history of traumatic brain injury and back fracture from an accident in 1995. Prior to that accident, claimant was treated with Paxil for depression. He stated at his hearing that he stopped using Paxil for depression after the 1995 accident and began self-medicating with marijuana for depression, headaches and pain control. Claimant stated that he smoked a bowl of marijuana the night before this accident, but did not smoke any the day of the accident. His supervisor stated that he “looked okay” before the accident, did not smell of marijuana, and was not stumbling or slurring his speech. Claimant did not have a prescription from a doctor for marijuana use. He acknowledged that he knew it was company policy for him to wear a safety harness when working in an area where there was a fall hazard; he also stated that he knew it was company policy for employees not to use controlled substances on the job, and he denied doing so.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Alejandro Carranza vs. Far West Steel and/or Wausau Insurance Company
Case Number --20021010
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 4/04
Amount --The ALJ adopted the medical panel’s findings and found claimant has stabilized medically from his industrial injury. Employer/carrier has paid him for his 3% related permanent impairment. Since claimant missed no work as a result of the accident, and employer/carrier paid his medical bills, the ALJ found that employer/carrier owes claimant no further benefits. The ALJ denied the requests for a discogram as per the medical panel’s findings.
Injuries --Claimant suffered a low back injury. An MRI showed disc degeneration at L4/5 with a moderate disc protrusion in the midline as well as L5/S1 disc degeneration with a disc bulge.
Attorney(s) - Plaintiff --W. Scott Lythgoe, Ogden
Attorney(s) - Defense --Michael E. Dyer and Kristy L. Bertelsen of Blackburn & Stoll
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Joseph Jarvis--chair and occupational medicine specialist; and Dr. Dennis Gordon--orthopedic surgeon.
Facts/Contentions --Claimant was injured while attempting to free some jammed iron rebar from a conveyor belt. The weight of the rebar was estimated at around 200 pounds. Claimant went on working and sought treatment two days later; he continued to work for the same employer until he was laid off over a year later. He sought approval for a discogram as recommended by his treating physician.
Employer/carrier argued that because of the degenerative changes in claimant’s spine as shown by the MRI, the bulges were most likely not caused by the industrial accident.
The medical panel found that the mild disc injuries suffered by claimant at L4/5 and L5/S1 were most likely caused by the industrial accident. The panel found that fusion surgery and even the taking of a discogram were contraindicated. The panel gave claimant a 3% related whole-person impairment rating.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Jennifer Emrick vs. Sr. George Care and Rehabilitation and/or Constitution State Service Company
Case Number --2001440
Court/Judge --Hann
Verdict/Settlement --Order, 4/04
Amount --The ALJ adopted the medical panel’s report and found that claimant suffered an industrial aggravation of a pre-existing injury. According to the Allen test, the work activities which led to an industrial re-injury must exceed the activities which a person might encounter in everyday life in order for the re-injury to quualify as a compensable accident. In this case, the ALJ found that lifting a 200-pound dead-weight patient met the standards of the Allen test; the ALJ therefore ordered employer/carrier to pay claimant temporary total disability compensation for the time she was off work because of this industrial re-injury. These accrued benefits are due and payable in a lump sum of $3.652.48 plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses for the period during which she was off work because of this industrial re-injury.
Injuries --Claimant suffered a low back injury. She was diagnosed with a protruding central disc at L4/5.
Attorney(s) - Plaintiff --Aaron J. Prisbrey, St. George
Attorney(s) - Defense --Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Joseph Jarvis--chair and occupational medicine specialist; and Dr. Dennis Gordon--orthopedic surgeon.
Facts/Contentions --Claimant stated that she was in the dining room, helping patients who could not feed themselves and doing rehabilitation therapy with people who were re-learning how to eat by themselves, when she noticed a 200-pound patient in a nearby room who looked as though he was about to try to get up or to fall out of his wheelchair. Claimant said she went into the room and tried to get the patient, who was bedbound and thus a dead weight, back into the chair by standing behind the chair and lifting the patient under the arms to boost him back into the chair. As she did this, claimant said, she experienced a very sharp pain in her back and down both of her legs. She reported the incident to a charge nurse.
Employer/carrier argued that claimant had experienced pain in her back and down both legs prior to the industrial incident. She was undergoing physical therapy at the time of this incident and had undergone an IDET procedure, which lessened her pain somewhat. An MRI indicated degenerative disc disease, which is not usually an indicator of a specific injury. Employer/carrier therefore denied liability.
The medical panel found no medically demonstrable causal connection between claimant’s pre-existing condition and her work injury, since the pre-existing condition was probably degenerative in nature. Claimant’s own physician, Dr. Stavrides, felt the industrial accident might have temporarily worsened claimant’s pre-existing condition, and the panel agreed, but neither Dr. Stavrides nor the panel attributed any of claimant’s whole-person impairment to the industrial re-injury, and neither felt the industrial incident permanently worsened claimant’s pre-existing condition.

FALL
Case Type --WA, SF; Work-related fall
Case Name --(Name of case withheld)
Case Number --2002385
Court/Judge --Hann
Verdict/Settlement --Order, 4/04
Amount --The ALJ accepted the medical panel’s report and found claimant has proved his need for low doses of ongoing pain medication and pain management training. The ALJ found that since claimant was overweight at the time of his injury, there was no industrial component to his morbid obesity. The ALJ found claimant failed to prove his need for further injections, physical therapy or membership in a health club are reasonably necessitated by his industrial injury. The ALJ ordered employer/carrier to pay for claimant’s ongoing low-dose medication and for pain management training for claimant, as well as his past-due medical bills for back pain treatment. Accrued benefits are due and payable in a lump sum plus interest.
Injuries --Claimant suffered a compression fracture at T7.
Attorney(s) - Plaintiff --Claimant was represented pro se.
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 J. Wirthlin--chair and neurologist; and Dr. Glen Momberger--orthopedic surgeon.
Facts/Contentions --Claimant stated that he fell 25 to 30 feet while showing scouts how to rappel. Six months later, he sought chiropractic care when his pain worsened; he stated that this treatment gave him some relief. His treating physician felt his ongoing pain was related to his industrial injury and recommended that he join a health club, receive ongoing low-dose medication and undergo pain management training. Claimant also received injections for his ongoing pain and sought benefits to pay for further injections.
Employer/carrier agreed that the industrial accident occurred, but denied responsibility for the chiropractic care or any further treatment, contending that claimant’s non-industrial pre-existing morbid obesity contributed more to his ongoing back pain than his cervical compression fracture. Employer/carrier also refused to pay for further pain control medication, contending that claimant suffered from non-industrial narcotic habituation. Claimant stated that he suffers from depression, but is not dependent on drugs and needs only low doses of medication to manage his ongoing pain.
Employer/carrier’s independent medical evaluation physician recommended that claimant engage in ongoing physical activity to lessen his pain; he also found there was no objective evidence to support claimant’s level of pain.
The medical panel found that claimant’s ongoing pain is related to the industrial accident; the panel agreed with employer/carrier’s physician that ongoing physical activity will help claimant and his obesity is non-industrial. The panel did not believe a health club membership, further physical therapy or further injections were necessary because claimant has been given a course of stretching and strengthening exercises to follow and can do so outside of a formal setting.

ORDER ON NOTICE OF CONTEST
Case Type --MS; Miscellaneous (health and safety violation citations)
Case Name --Utah Occupational Safety and Health (UOSH) vs. Allred’s, Incorporated
Case Number --5305401622, 5305401630
Court/Judge --Eblen
Verdict/Settlement --Order, 6/04
Amount --The ALJ dismissed the notice of contest filed by Allred’s and affirmed the UOSH citations.
Attorney(s) - Plaintiff --Utah Assistant District Attorney William Loos
Attorney(s) - Defense --None listed.
Facts/Contentions --UOSH issued two citations to Allred’s. The company was cited for failing to install guards on the chains and gears of overhead doors in Allred’s buildings, the pulley and the V-belt on two elbow machines in Allred’s shop, the chains and gears on a flying shear machine in Allred’s shop, and the shaft and bolts from a coupling on the roto-table in Allred’s shop. UOSH also cited Allred’s for hard-wiring its shop machines into the building’s electrical current instead of establishing lockout/tagout procedures for each machine; for failing to provide lockout/tagout training to its employees; for failing to maintain a written fire prevention/emergency action plan; for failing to maintain the floor of its workroom in a dry condition; for failing to make provision for immediate drenching or flushing of the eyes (within 10 seconds of corrosive material splashing in the eyes) in places where employees were exposed to injurious corrosive materials while changing forklift batteries; and for failure to provide certification training for two operators of forklift equipment.
Allred’s notified UOSH of its intention to contest the citations and penalties, and UOSH duly forwarded the case to the ALJ as mandated by law so that an evidentiary hearing could be scheduled. The ALJ scheduled a pre-hearing conference and notified both sides of the date and time, but Allred’s failed to appear at the scheduled pre-hearing conference. The ALJ and counsel for UOSH waited 10 minutes to allow Allred’s an opportunity to appear in the event that they were simply running late, or to call and notify the ALJ if they were experiencing other difficulties. When no one appeared or called on behalf of Allred’s, default was entered against them.

WORK INJURY
Case Type --WA; Work-related injury
Case Name --Karen East vs. Sun Hawk Academy and/or Workers’ Compensation Fund
Case Number --2003702
Court/Judge --Eblen
Verdict/Settlement --Order, 6/04
Amount --The ALJ accepted the reports of both medical panels. The ALJ ordered employer/carrier to submit evidence regarding the alleged overpayment of benefits, but employer/carrier failed to do so. The ALJ noted that claimant received a printout from WCF indicating she was overpaid temporary total disability benefits, but the printout also indicated that deductions were made to offset the overpayment in the amount of $1,110.86; the ALJ therefore concluded that no overpayment existed at the time of the hearing. The ALJ denied employer/carrier’s overpayment claim and requests for a credit against compensation due from this award. The ALJ noted that employer/carrier paid claimant for a 6% industrial whole-person impairment and ordered employer/carrier to pay claimant $639.60 for the additional 1% impairment awarded claimant by the second medical panel. The ALJ also ordered employer/carrier to reimburse claimant for $507.62 in medical bills which she paid; these reimbursements and the additional permanent partial disability payment are due and payable in a lump sum plus interest (in the case of the medical bills, the interest computation to start on the day when claimant paid the bills). The ALJ ordered employer/carrier to pay claimant’s related future medical expenses, up to and including surgery if necessary.
Injuries --Claimant suffered a thoracic disc herniation at T6/7.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Elliot K. Morris
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Ross McNaught--chair; and Dr. Robert Nakken--orthopedic surgeon. When the parties disagreed over whether the prescription for Neurontin which claimant received was medically necessary to treat her injury, this issue reviewed and claimant examined by a second medical panel consisting of Dr. Madison Thomas--neurologist and chair; and Dr. Glenn Momberger--orthopedic surgeon.
Facts/Contentions --Claimant was injured while working for Sun Hawk. She stated that she was riding in the back seat of a van which was traveling down a bumpy dirt road. Claimant said she had her seat-belt on, but the seat she was sitting in was not bolted to the floor, so that claimant was bounced and jounced abnormally. After going to bed that night, she said, she awoke with severe pain in the center of her back. She said she did not immediately seek medical treatment because she believed she had simply pulled some muscles in her back and would get better. When the pain continued for a month, she sought medical care. Claimant said she is currently working part-time, and after she is through working, she goes home and goes to bed because of pain.
Employer/carrier did not dispute that the injury occurred, but the parties disagreed over whether claimant was entitled to a 3% or a 7% permanent partial disability award for her whole-person impairment from the industrial injury. Two different physicians awarded claimant the two differing impairment ratings. At the hearing on this case, the parties agreed that claimant’s workers’ compensation benefits had been overpaid by employer/carrier, though they were unsure of the amount.
The first medical panel concluded that claimant’s back problems were work-related and the past care she received from her treating physicians was medically necessary to treat her industrial injury. The first panel felt claimant was not medically stable, and the diagnostic and therapeutic nerve blocks recommended by her treating physicians are necessary to help control her pain. If the pain does not abate after claimant receives the nerve blocks, however, the first panel felt surgery will be necessary to treat claimant’s industrial injury.
The second medial panel awarded claimant a 7% related whole-person impairment rating. Employer had paid claimant for a 6% impairment. The second panel concluded that the prescribed Neurontin was medically necessary to help claimant control the pain caused by her industrial injury.

TRIP
Case Type --WA, SF; Work-related trip
Case Name --Patricia Moe vs. C. R. England
Case Number --2002861
Court/Judge --Hann
Verdict/Settlement --Order, 6/04
Amount --The ALJ ruled that claimant failed to prove by a preponderance of the evidence that she suffered a permanent re-aggravation of her pre-existing left knee condition in this industrial accident. Instead, the ALJ found, claimant suffered a temporary re-aggravation of her pre-existing left knee condition which returned to baseline two months after this incident, when claimant resumed driving her truck. The ALJ therefore dismissed the claim for benefits after 10/18/99 with prejudice. However, the ALJ ordered self-insured employer to pay claimant additional temporary total disability benefits for the period running from 8/8/99 through 10/18/99 based on a higher compensation rate and to pay any outstanding medical bills for the medical treatment claimant received for her left knee during the same period. These benefits are due and payable in a lump sum plus interest.
Injuries --Claimant sustained a severe twist injury to her left knee. She had an extensive history of osteoarthritis with four previous left knee surgeries. She underwent a surgical left knee replacement three years after this injury.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Ford G. Scalley of Scalley & Reading
Expert Witness(es) - Plaintiff --Dr. Pinzer; Dr. Harrington
Expert Witness(es) - Defense --Dr. Richard Knoebel--independent medical examination physician
Damages --Self-insured employer paid claimant $1,791.50 in temporary total disability benefits for the time she was off work; she was also paid unspecified temporary partial disability benefits for light duty work.
Facts/Contentions --Claimant was working for self-insured employer as a team truck driver with her husband. While they were stopped in Las