Industrial Reports

2005

WORK INJURY/OCCUPATIONAL DISEASE CLAIM
Case Type --WA, OD; Work-related injury or occupational disease claim
Case Name --Jeff R. Harris vs. Diamond Plastering and/or Wasatch Crest
Case Number --2002700
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 12/04
Amount --The ALJ adopted the medical panel’s report and found that claimant’s work activities for this employer caused his low back problems. Since the panel did not issue a finding on claimant’s medical stability, the ALJ adopted Dr. Knoebel’s opinion, which was the only one provided on this issue, that claimant would reach medical stability six months from the time Dr. Knoebel examined claimant on 8/22/02; the ALJ therefore found claimant reached medical stability on 2/22/03. Since the panel did not issue a finding on claimant’s degree of permanent whole-person impairment, the ALJ adopted the 5% whole-person impairment rating supplied by Dr. Colledge, which was the only opinion provided on this issue.
The ALJ ordered employer/carrier to pay claimant $6,600 in accrued temporary total disability compensation and $3,120 in permanent partial disability compensation for his 5% related whole-person impairment. Both these awards are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses and any travel expenses incurred by claimant in seeking medical treatment for his industrial injury. However, the ALJ dismissed with prejudice the claim for future medical benefits to pay for possible surgery.
Injuries --Claimant suffered a low back injury. After the incident which gave rise to this claim, he was diagnosed with degenerative disc disease at L4/5 with a diffuse annular disc bulge and a small tear of the central annulus fibrosis, and mild facet disease on the left at L5/S1.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Joseph Jarvis, MD--chair and occupational medicine specialist; and Dennis Gordon, MD--orthopedic surgeon.
Facts/Contentions --Claimant worked as a plasterer from the age of 15, or some 14 years before he started his work for this employer, but much of his previous work involved “tending hod” rather than the actual plastering he did for this employer. He said he had worked as a plasterer for this employer for two and one-half years before the incident that gave rise to this claim. He said his work weeks varied radically from week to week depending on the weather and/or delays caused by other contractors, but when he was working, his duties involved the application of stucco to houses, and he usually worked 8 to 10 hours per day. Claimant stated that he applied an average of thirteen 70-pound bags of stucco to each house he worked on, spending a half day shoveling “mud” into buckets on the “mud board stand” at 150 pounds per shovel-head; scooping “mud” into the hod 20 pounds at a time; applying the “mud” with a trowel onto exterior walls covered with chicken-wire, using 5 pounds of “mud” on each trowel-full; and smoothing the “mud” on the walls with a “darby stick.” Claimant stated that his work involved constant bending, twisting and turning at the waist as he applied “mud” from ground level on up each 10-foot wall. Claimant said he held the trowel in his right hand and the hod in his left as he applied the “mud.”
Claimant stated that on May 29, 2001, he was applying plaster to a house and bent over from the waist to trowel some plaster onto a wall at ground level. Suddenly, he said, he felt immediate low back pain which was so severe that he had to sit down. He eventually resumed work and completed the day. He reported the incident to his supervisor the same day, but only sought medical treatment a month later when, he said, the pain became so severe that he was unable to stand it any longer. He said the pain radiated down both of his legs, but was worse on the left side. Claimant was unable to work from 7/7/02 through the date of his hearing on this claim. Employer/carrier contended that claimant’s low back problems were non-industrial and degenerative in nature and predated his work for this employer.
Claimant admitted that he injured his low back in 1991 while lifting some heavy bundles of burlap bags. An x-ray of his lumbar spine taken at this time showed no disc space narrowing, no fractures or subluxation, and no evidence of spondylosis or spondylolisthesis. Claimant returned to work the day after his lumbar strain injury in 1991. He said the low back pain from that incident lasted only three or four days.
Claimant said he hurt his back again in 1999 when he fell off a scaffold while at work for this employer; however, he did not include that incident as a specific part of this industrial claim for injury/disease. An x-ray taken at this time revealed some probable premature calcified atherosclerotic plaque of the iliac arteries and minor osteophytic changes at L2/3. Claimant stated that he missed no work because of this incident and experienced very little back pain in connection with it.
The medical panel rejected the May 29, 2001 incident as causally significant, but determined “with a reasonable degree of medical certainty” that claimant’s actions in the course of his work for this employer would have aggravated and perhaps caused his current low back problems. The panel felt surgery would not be helpful in claimant’s case.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Terry Collier vs. Daggett County and/or Workers’ Compensation Fund
Case Number --2003669
Court/Judge --Marlowe
Verdict/Settlement --Order, 1/05
Amount --The ALJ ordered employer/carrier, using claimant’s stipulated average weekly wage at Daggett as a basis for calculation, to pay claimant any accrued temporary total disability benefits they have not already paid 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 claimant’s related medical expenses and any travel expenses incurred by claimant in seeking medical treatment for his industrial injury.
Injuries --Claimant was diagnosed with a cervical injury and a dissected carotid artery which caused him to suffer a small stroke. He was given a 5% related whole-person impairment rating for the injury, but his degree of impairment in connection with the stroke has not been assessed. Claimant has some continuing problems with his left eye, which droops and becomes fatigued, and he also experiences headaches.
Attorney(s) - Plaintiff --Richard R. Burke of King, Burke & Schaap
Attorney(s) - Defense --Lori Hansen
Expert Witness(es) - Plaintiff --Dr. Joel Dall
Expert Witness(es) - Defense --Dr. John Barbuto
Damages --Employer/carrier paid some medical expenses and some compensation.
Facts/Contentions --Claimant was injured when he was backing a bulldozer over some tree-stumps; he stated that he got high-centered, involuntarily jerked his head and neck backward and to one side, and felt immediate pain. Employer/carrier originally contended that claimant could not prove legal and medical causation; however, after claimant’s and respondent’s experts agreed on the nature of the injury claimant suffered and his degree of related whole-person impairment, the parties made several stipulations which narrowed the issue submitted to the ALJ to the question of claimant’s average weekly wage. The average weekly wage is the basis used by an ALJ to calculate the amount of all types of workers’ compensation benefits owed by an employer/carrier to an injured worker, with the exception of medical expenses.
Claimant was definitely working for respondent employer in February of 2003 when he was injured, and the parties stipulated that his average weekly wage from Daggett was $389.32. However, from April through November of each year he also ran his own small business, conducting tourists on fishing trips below Flaming Gorge Dam. Claimant said his tour operators owned their own boats and towing vehicles, and claimant paid them, and himself, on a 1099 form. Claimant produced his 1099 from the guide business for the year before the year in which he was injured, showing that he was paid $16,153.70 from the guide service; however, his tax return from the same year showed business expenses of $17,923 for the business, giving a net business loss of $1,700. Claimant said he did not work as a fishing guide on any days in 2003 prior to the date when he was injured while working for respondent employer.
The ALJ noted in her opinion that there are several methods set forth in the Utah Code Annotated for computing an injured worker’s average weekly wage, based on how the employee was paid. If none of these methods are applicable, the Code says, the ALJ may use such other methods as will give a fair determination of the employee’s average weekly wage. The ALJ found that in this case none of the stated methods would be useful in determining claimant’s average weekly wage, since no evidence was presented to show that claimant’s income was dependent on any consistencies in time period, project worked, or pay rate. The ALJ therefore used the “fairness” method, taking guidance from Millard County v. Industrial Commission, in which the injured claimant had two jobs but did not work them concurrently. The Utah Supreme Court ruled in that case that workers’ compensation benefits “may not be enlarged or diminished because the injured employee may have had larger or smaller earnings prior to the time of his injury in some other or the same employment.” The ALJ therefore found that claimant’s average weekly wage should be calculated only on his wage at Daggett, not on any gains or losses he realized from the fishing guide business.

ORDER ON REQUEST FOR EXTENSION/MOTION FOR REVIEW
Case Type --WA; Work-related injury claim
Case Name --Kurt F. Herrera vs. Industrial Power Contractors; Fremont Comprehensive Insurance Company; and Employers’ Reinsurance Fund (ERF)
Case Number --001135
Court/Judge --This order was issued by Utah Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 1/05
Amount --Discussing the ERF’s request first, the Commissioner noted that under the terms of the Utah Administrative Procedures Act, concerned parties aggrieved by an ALJ’s decision are given 30 days in which to request a review by the Commissioner or the Review Board of the Labor Commission. The Commissioner wrote that the certificate of mailing in the case showed that the ALJ’s decision was mailed to ERF’s present counsel on September 30, 2004, the same day the decision was issued. Since ERF did not request an extension of time in which to file a motion for review until November 23, 2004, the Commissioner wrote, the delay was too long and the explanation of ERF’s failure to file the request earlier was too unclear to allow the Commissioner to grant it. The Commissioner therefore denied the ERF’s request for an extension of time in which to file a motion for review.
Concerning the issue of claimant’s request for review, the Commissioner found it was filed within the time allowed for such requests. The Commissioner wrote that the Utah Workers’ Compensation Act does not state whether the interest awarded to an injured worker on accrued benefits should be simple or compound. However, the Commissioner continued, in cases where the statute is silent, the law generally presumes that simple interest is intended; and the Commission has consistently awarded only simple interest on accrued benefits in workers’ compensation cases. The Commissioner therefore denied claimant’s motion for review and upheld the ALJ’s decision and award, including the award of simple interest on the accrued benefits due claimant.
Attorney(s) - Plaintiff --Virginius C. Dabney of Dabney & Dabney, St. George
Attorney(s) - Defense --For employer/carrier: Brad C. Betebenner of Richards, Brandt, Miller & Nelson; for ERF: Elliott R. Lawrence
Facts/Contentions --After claimant filed his application asking the Labor Commission to order employer/carrier and the ERF to pay him permanent total disability benefits for his work-related injuries, an ALJ of the Labor Commission awarded permanent total disability benefits to claimant plus simple interest at 8 percent per annum on all accrued benefits from the date of accrual through the date of payment.
Claimant filed a timely motion for review of the ALJ’s decision by the Labor Commissioner, contending that the ALJ should have awarded him compound interest on the accrued benefits due him.
The ERF filed an untimely request for additional time in which to file its own motion for review, claiming that “because of the reorganization of the staff attorney in September, the decision was not received until November 1.”

FALL
Case Type --WA, SF; Work-related fall injury claim
Case Name --(Name of case withheld)
Case Number --2000555
Court/Judge --George
Verdict/Settlement --Order, 1/05
Amount --The ALJ adopted the medical panel’s findings and ordered employer/carrier to pay claimant $3,641.82 in accrued permanent partial disability benefits for the 5% increase in his industrially related whole-person impairment. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses; however, to avoid future litigation and disputes, the ALJ strongly urged claimant to have his medical providers submit any proposals for future treatment to carrier for pre-authorization.
Injuries --Claimant suffered head injuries which originally left him with both psychiatric and neurological impairments; the degree of these impairments was disputed by the parties.
Attorney(s) - Plaintiff --Randall G. Phillips of Phillips Law Office, Ogden
Attorney(s) - Defense --Eugene Miller
Expert Witness(es) --Because of conflicting medical testimony, this case was referred back to the medical panel for an updated opinion. The medical panel consisted of an expert in neurology, an expert in neuropsychology and an expert in psychiatry.
Facts/Contentions --Claimant originally fell and struck his head while at work for employer. The parties stipulated to the underlying facts, and the medical aspects of the claim were submitted to a medical panel, which determined that claimant suffered a 5% related whole-person psychiatric impairment and a 10% related whole-person neurological impairment as a result of his industrial fall. The ALJ awarded benefits and the case was closed.
Claimant filed this request for further benefits on 6/27/00, contending that his condition had worsened and he had suffered further industrially related whole-person impairment.
Employer/carrier moved to dismiss the second claim on grounds that claimant failed to provide a new impairment rating. In his reply to employer/carrier’s motion to dismiss, claimant attached a summary of medical record from one of his treating physicians indicating that claimant had a 75% psychological whole-person impairment with 10% pre-existing and another summary of medical record from a second treating physician indicating that claimant had an 85% whole-person impairment, with 75% resulting from psychological causes and 40% resulting from neurological causes.
Employer/carrier filed another motion to dismiss and a motion for a protective order, attaching a one-page letter from the first treating physician dated four months earlier than the summary of medical record entered by claimant and giving an estimation that claimant had a 65% psychological impairment. Claimant objected to the motion to dismiss and the motion for a protective order, submitting a two-page letter from the first treating physician to the ALJ and a four-page letter sent to claimant’s attorney by the second treating physician.
After these proceedings the ALJ ordered claimant’s attorney to show the second treating physician a surveillance video taken by employer/carrier and then ask the second treating physician if the video made any difference in his assessment of claimant’s impairment. The second treating physician submitted a one-page letter to the court in which he stated that he had not seen the surveillance video, but understood that in it, claimant was riding a motorcycle and water-skiing. The second treating physician stated in the letter that such behavior showed a lack of good judgment on the part of claimant which was consistent with his impairment and from which disastrous results might be predicted if claimant insisted on continuing to drive. The second treating physician later submitted a one-sentence report in which he stated that he had reviewed the surveillance video, and it made absolutely no difference in his opinions as previously stated. The ALJ denied employer/carrier’s motion to dismiss on grounds that claimant had presented new medical documentation indicating that his condition had changed, and the impairment issues were sent back to the medical panel for a second determination.
The medical panel reviewed the prior record and the new evidence, spoke with claimant by phone, and concluded that claimant had suffered an additional 10% neurological whole-person impairment in that he now has grand mal seizures that interfere with some of his daily activities. The panel further concluded that claimant’s earlier 5% related whole-person impairment for psychiatric causes had diminished to 0 % because his psychological disorder no longer limited his activities. The net result, according to the panel, was a 5% net increase in claimant’s industrially related whole-person impairment.
The panel concluded that the treatment claimant had received for his impairment was reasonable and medically necessitated by his industrial injuries, and future neurological and psychiatric treatment, including new anti-seizure medications, various anti-epileptic medications, or adjunctive epilepsy treatment such as VNS or epilepsy surgery might possibly be necessary in light of claimant’s industrial injuries. The panel felt that periodic visits for medication adjustment and more counseling about appropriate activities would very likely be necessary to treat claimant’s industrial injuries.
Employer/carrier objected to the medical panel’s conclusions on grounds that claimant continues to drive motorcycles and automobiles, goes to the gym for general workouts to keep up his strength, plays hockey weekly, and even traveled to England for an extended period to play hockey. The ALJ overruled employer/carrier’s objections, noting that the panel was aware of claimant’s activities at the time they issued their report and, while they felt claimant’s activities of this nature might be dangerous if claimant suffered a grand mal seizure while engaging in any of them, they noted that engaging in these activities had reduced claimant’s depression to the point where it no longer constituted an impairment. The ALJ noted that employer/carrier presented no evidence to contradict the record, which showed that claimant had two motor vehicle accidents as a result of black-outs he suffered after his industrial accident.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Lynn Pacheco vs. F-Matic of America; and/or Farmers Insurance Group of Companies/Truck Insurance Exchange; and/or State Farm Fire and Casualty Company
Case Number --20040206
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 1/05
Amount --The ALJ ruled that claimant’s low back problems and her need for medical treatment were caused by the accident she suffered at work on 10/29/01, when her employer was insured by Farmers. The ALJ therefore ordered Farmers to pay claimant’s related medical expenses plus any travel expenses incurred by claimant in seeking medical treatment for her industrial injury. All of these benefits are due and payable with interest if accrued.
Injuries --Claimant suffered a low back injury.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --For State Farm: Peter H. Christensen of Strong & Hanni; Farmers did not answer or appear.
Facts/Contentions --When claimant filed this request for benefits, she claimed her low back injury stemmed from an industrial accident that occurred on 9/5/03, when her employer was insured by State Farm.
State Farm argued that claimant’s low back injuries were caused by a previous industrial accident which occurred on 10/29/01, when claimant’s employer F-Matic (the same one) was insured by Farmers. State Farm filed a request to join Farmers as the insurer of claimant’s employer at the time claimant allegedly suffered her industrial injury.
The ALJ allowed the filing of an amended claim and ordered Farmers to respond to it. However, Farmers did not file an answer and did not appear at the hearing on this claim.
At claimant’s hearing, the parties in attendance agreed by stipulation that claimant suffered her low back injury on 10/29/01, and that this injury arose out of claimant’s employment with F-Matic insured by Farmers. The parties in attendance also agreed that claimant’s low back problems were caused by the accident of 10/29/01 and not by the accident of 9/5/03.

REPETITIVE STRESS INJURY CLAIM
Case Type --WA, SI; Work-related repetitive stress injury claim
Case Name --(Name of case withheld)
Case Number --200334
Court/Judge --Lima
Verdict/Settlement --Order, 1/05
Amount --The ALJ accepted the medical panel’s report in part, but did not feel the panel’s arbitrary allocation of causation (80% non-industrial and 20% industrial) was supported by the medical record. The ALJ felt the preponderance of evidence provided by the medical record indicated that claimant’s carpal tunnel syndrome and her dequervain’s tenosynovitis were not caused in any way by her work activities. The ALJ therefore dismissed the claims for temporary total disability benefits and past medical benefits with prejudice. However, the ALJ found that claimant’s regional arm pain syndrome, which resulted from overuse, was likely caused by her work activities; the ALJ therefore dismissed the claim for recommended future medical expenses for treatment of the regional arm pain syndrome without prejudice, so claimant can re-file this claim at some point in the future if she and her treating physicians feel further treatment is warranted.
Injuries --Claimant was diagnosed with bilateral carpal tunnel syndrome, regional arm pain syndrome (which developed after she underwent bilateral surgery for the carpal tunnel syndrome) and dequervain’s tenosynovitis.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Mark D. Dean and Kristy Bertelsen of Blackburn & Stoll
Expert Witness(es) -- Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Joseph Q. Jarvis--chair; and Dr. Joel Dall.
Damages --Employer/carrier paid claimant $3,158.25 in past medical expense benefits and $1,467.05 in past temporary total disability benefits.
Facts/Contentions --Claimant was hired by employer to sew pillow-top mattresses. She used several different types of machines and alternated between pulling and feeding the mattress-cover fabric into the machines. She consistently worked more than 40 hours per week until she began having problems with her hands, which she reported to her supervisor. She experienced weak grip and numbness in the fingertips of both hands, with the right hand being worse than the left. The Salt Lake Industrial Clinic gave her bilateral wrist splints and Vioxx, referred her to physical therapy, and restricted her from repetitive use of either hand. She was taken off work entirely for four weeks. However, after returning to work, she continued to work on average more than 50 hours per week and to have increased pain and numbness and more trouble gripping things. An EMG study finally revealed bilateral carpal tunnel syndrome, but this finding was disputed by employer/carrier’s independent medical evaluation (IME) physician, who claimed there was no objective evidence of carpal tunnel. The IME physician opined that claimant’s hand problems were caused by her morbid obesity; he contended that if it had been caused by her work activities, it would have resolved completely or partially during the four weeks when claimant was off work, instead of which it continued to worsen over that time.
Claimant underwent carpal tunnel release surgeries on both hands and experienced cessation of the numbness and tingling in her fingers and a complete return of range of motion. However, some time after the surgeries, she began experiencing shooting pains up both her arms and tenderness and lack of strength in her hands. She is currently able to drive about a half-hour before her hands begin giving her problems, and she does light housework with the help of her daughter and her sister. She is not working at present.
Employer/carrier, relying on the findings of its IME physician, contended that claimant’s problems were not caused by her work activities.
The medical panel felt that claimant suffered from regional arm pain syndrome, an overuse diagnosis, which could be caused by her work activities. The panel also diagnosed bilateral carpal tunnel syndrome and dequervain’s tenosynovitis. The panel noted that claimant’s ongoing problems were hard to explain on an industrial basis. Though the panel conceded it was possible that claimant’s carpal tunnel syndrome could have been caused by claimant’s work activities, they added that the occupational epidemiologic literature did not implicate activities such as those claimant performed at work as a risk factor for carpal tunnel syndrome. The panel concluded that it could not with a reasonable degree of certainty find a medically demonstrable causal connection between claimant’s work activities and her carpal tunnel syndrome, her dequervain’s tenosynovitis, or her delayed recovery. The panel found claimant’s current level of disability excessive and stated that it suggested underlying non-industrial psychosomatic factors that prolonged claimant’s symptoms. The panel determined that claimant reached medical stability six months after her carpal tunnel surgeries and found that the physical therapy she received was medically necessary to treat her industrial injuries, but the surgeries themselves were not necessitated by industrially caused injuries, although the possibility could not be ruled out. In its final apportionment of causation, the panel therefore attributed 80% of claimant’s symptoms to non-industrial causes and 20% to industrial causes based on this assumption of possibility.

TITIVE STRESS
INJURY CLAIM
Case Type --WA, SI; Work-related repetitive stress injury claim
Case Name --Tom M. Zakis vs. Convergys Corporation (self-insured)
Case Number --2003572
Court/Judge --Eblen; then Sessions
Verdict/Settlement --Order, 2/05
Amount --The ALJ adopted the medical panel’s opinion and found that claimant failed to prove medical causation. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered bilateral carpal tunnel syndrome.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel chaired by Joseph Jarvis, MD--occupational medicine specialist.
Facts/Contentions --Claimant contended that his activities at work for employer caused his carpal tunnel syndrome, for which surgical repair was recommended.
Self-insured employer argued that claimant’s carpal tunnel syndrome was non-industrial in nature.
The medical panel wrote in its opinion that the repetitive movements most likely to cause carpal tunnel syndrome are “forceful, twisting hand movements, not keyboard use.” The panel felt claimant’s carpal tunnel syndrome was most likely not medically caused or aggravated by his work activities. The panel further found that since claimant has no atrophy and the electrical abnormalities found in his hands/arms are mild, surgery was not medically necessary to treat his condition.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Dawn Hare vs. Cottonwood Hospital/IHC
Case Number --2000802
Court/Judge --George
Verdict/Settlement --Order, 2/05
Amount --The ALJ adopted the medical panel’s supplementary report and ordered self-insured employer to pay claimant $2,417.53 in accrued temporary total disability benefits plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Self-insured employer must also pay all of claimant’s related medical expenses, plus interest if these expenses are outstanding.
Injuries --Claimant suffered a ruptured spinal disc.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Henry K. Chai, then Michael E. Dyer, of Blackburn & Stoll
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel and then re-referred for clarification by the panel.
Facts/Contentions --Claimant worked as a registered nurse in the Orthopedic Specialty Hospital at Cottonwood. She had been there for eight years and worked 24 hours per week. She also worked 20 hours per week at Shriners Hospital and did 8-16 hours of on-call work per week at Midtown Manor. Claimant said she and another nurse were engaged in a “draw sheet” procedure with a 200-pound patient, using a folded sheet under the patient to slide the patient up in the bed. The nurses simultaneously twisted and tugged the draw sheet to position the patient, who was not able to assist them with the procedure in any fashion. Claimant said the draw was “a bad one” and she felt a pull in her upper back, where she was hunched over during the procedure. The two nurses tried to complete the maneuver again and were successful. However, claimant said, when she went next door and bent over at the waist to speak to a patient in a wheel-chair who was hard of hearing, claimant felt an immediate shooting pain throughout her whole back. She said she finished her shift but was very careful, and reported the incident to her supervisor. Claimant said she went home and took some Flexeril and ibuprofen as she had “excruciating” pain in her low back and left hip. When she found she could not drive, she called a friend to take her to the Cottonwood Emergency Room. She was off work for the following two months; at the end of that time Shriners offered her light duty work on an increasing basis. At the time of her hearing, claimant was working 72 hours every two weeks, which she said was 90% of her previous hours. Claimant was granted leave to amend her claim to include temporary partial disability for the nine months it took her to work back up to nearly full capacity.
Self-insured employer contended that the draw sheet procedure was separate and distinct from claimant’s act of bending over at the waist to talk to the patient who was hard of hearing. Self-insured employer argued that no medical or legal causation could be proven between the draw sheet procedure and the injury, considering claimant’s pre-existing low back problems.
The medical panel returned a report to which employer objected, contending that factual distinctions not understood by the panel rendered its answers to the questions inadequate. The matter was referred back to the panel for clarification, and the panel issued its supplementary report with no objections. The panel found there was a medically demonstrable causal connection between claimant’s back problems and the incident where claimant, as a “disc susceptible” person, bent over at the waist to speak to the hard-of-hearing patient in the wheel-chair. The panel felt this action was “highly likely to cause a ruptured disc to develop.” The panel found that claimant stabilized from this injury about one month later, and the medical care claimant received was reasonable and necessary to treat her industrial injury.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Reed W. Iverson vs. Mike Jeppson and Associates and/or Workers’ Compensation Fund; and/or Mike Jeppson and Associates and/or Utah Property and Casualty Guaranty Association
Case Number --2003475, 2003476
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 2/05
Amount --The ALJ found that Utah Property was employer’s carrier at the time of claimant’s first accident; Utah Property therefore owed WCF $11,459 in reimbursement for the expenses WCF paid claimant after the first industrial accident. The ALJ found that Utah Property owed claimant $1,691.94 in additional temporary total disability benefits for the time he was off work following the first industrial accident until he reached maximum medical stability. The ALJ ordered Utah Property to pay claimant $1,691.94 in accrued temporary total disability benefits plus interest. The ALJ ordered Utah Property to reimburse WCF for the $11,459 WCF paid claimant in temporary total disability benefits. The ALJ further ordered Utah Property to pay claimant’s related medical expenses, plus interest if these expenses are still outstanding, and also to pay claimant $17,621.76 in accrued permanent partial disability benefits for his 16% related whole-person impairment. The awards for temporary total and permanent partial disability benefits and accrued interest are due and payable in a lump sum.
Injuries --Claimant suffered back injuries. He had a pre-existing Grade I spondylolisthesis at L5/S1 and was later diagnosed with a herniated disc at L5/S1 which caused L5 radiculopathy, as well as a Grade II right far lateral extra-foraminal disc bulge that displaced the right L3 nerve root just beyond its exit from the neural foramen. Claimant also had severe degenerative changes and foraminal narrowing. All of these conditions were present before the first industrial accident. After the second industrial accident, claimant underwent a laminectomy and bilateral foraminectomies for decompression of neural elements at L5/S1; a left posterior lumbar interbody fusion with use of TPLIF interbody spacer; a posterior spinal fusion at L5/S1 with autologous bone marrow aspirate and allograft cancellous and demineralized bone; posterior instrumentation at L5/S1 (MMSI-Dupuy); and bilateral posterior iliac crest bone marrow aspirates.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --For Jeppson/WCF: Lori Hansen; for Jeppson/Utah Property: Mark D. Dean of Blackburn & Stoll
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Alvin Wirthlin, MD--neurologist; and Glenn L. Momberger, MD--orthopedic surgeon.
Damages --WCF stated that it paid claimant $11,459 in temporary total disability compensation for the period when he was off work following the first industrial accident.
Facts/Contentions --Claimant was injured twice while working for the same employer. The first injury occurred when claimant, who worked as a mason, picked up a 50-pound corner stone, 2' x 2' x 2', and pushed it into place at shoulder-height. He said he felt immediate pain and had to lie down for a minute, after which he reported the incident to his boss Mike Jeppson. The second incident occurred two years and one month later, when claimant picked up a two-pound piece of brick measuring 8" x 5" and felt immediate pain in his low back. Employer’s two insurers disagreed over whether either of the industrial incidents caused claimant’s spinal problems, given his pre-existing spinal condition.
All of the doctors in the case agreed emphatically that claimant’s industrial accident caused the need for his spinal surgery; however, two of employer’s independent medical evaluation (IME) physicians disagreed on how much of claimant’s 16% whole-person impairment was related to the first industrial accident. The medical panel found that claimant’s first industrial injury caused the new spinal problems he experienced and left him with a 16% related whole-person impairment over and above his earlier spinal condition. The ALJ adopted the medical panel’s report and found that the uncontested medical evidence showed claimant reached maximum medical stability on 10/22/03 after his first industrial accident.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Bruce W. Baxter vs. United Parcel Service and/or Liberty Mutual Insurance Company
Case Number --20011086
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 2/05
Amount --The ALJ adopted the medical panel’s report and found that employer/carrier overpaid claimant for 2.14 weeks of temporary total disability benefits after claimant attained maximum medical improvement. The ALJ found that claimant sustained a 10% whole-person impairment in the industrial accident, and that the 2.14 weeks’ overpaid benefits should be offset when computing the amount claimant was owed for additional permanent partial disability benefits. The ALJ ordered employer/carrier to pay claimant a total of $11,013.60 less $5,506.80 already paid, less the 2.14 weeks of temporary total disability benefits overpaid by employer/carrier, to cover the remaining amount owed claimant in permanent partial disability benefits.
The parties stipulated at the hearing that employer/carrier would pay claimant $377.34 plus interest for travel expenses incurred by claimant in seeking treatment for his industrial injuries. Employer/carrier also agreed to pay claimant’s outstanding related medical expenses plus interest, including $1,853.20 in out-of-pocket prescription expenses.
Injuries --Claimant suffered back injuries. He had a prior history of degenerative spinal problems before he was pinned to the floor by the conveyor unit in the industrial accident. The industrial accident caused acute L1, L2 and T12 vertebral body compression fractures with L1 cannicular narrowing of a mild degree, a stable shallow C6/7 left-sided focal disc herniation, a disc herniation at T8/9 with possible cauda equina syndrome and right-side lumbar radiculopathy. Claimant also suffered a right knee injury in the industrial accident which caused pre-patellar tendon bursitis, but this condition later resolved.
Attorney(s) - Plaintiff --Sandra N. Dredge, Provo (withdrew after the medical panel returned its report) Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Alvin Wirthlin, MD--neurologist; and Glenn L. Momberger, MD--orthopedic surgeon.
Damages --Employer/carrier paid claimant temporary total disability benefits for eleven and one-half months when he was off work following the industrial accident. Employer/carrier paid claimant $5,506.80 in permanent partial impairment benefits for a 5% related whole-person impairment. Employer/carrier also paid some medical expenses but refused to pay others.
Facts/Contentions --Claimant worked for employer as a journeyman mechanic. He was working on an overhead conveyor system when the 800-pound conveyor unit dropped on him, folded him in half, and pinned him to the floor. The unit stopped some 10 to 15 inches from the floor, pressing on claimant’s back.
Employer/carrier agreed that the industrial accident occurred, but argued that they had paid claimant all the workers’ compensation benefits to which claimant was entitled. The parties disagreed on the date when claimant attained maximum medical stability, claimant’s degree of related whole-person impairment, and the amounts of benefits owed claimant by employer/carrier.
The medical panel reviewed the medical records and the films and examined claimant. The panel found that claimant reached maximum medical stability ten months and three weeks after his industrial accident.

SLIP
Case Type --WA, SF; Work-related slip injury claim
Case Name --Dan J. Hermansen vs. Tekton and/or Workers’ Compensation Fund
Case Number --20021186
Court/Judge --Eblen; then Sessions
Verdict/Settlement --Order, 2/05
Amount --The ALJ found that the statute of limitations is absolute in setting forth the time period during which an injured worker may file a claim for workers’ compensation benefits. ALJ Sessions wrote, “The Labor Commission is without ongoing jurisdiction to amend or adjust an award or prior order when the effect of the statute of limitations determination in the prior order is to acknowledge the lack or jurisdiction because the limitation period has already run on the claim.” The ALJ dismissed this claim with prejudice for lack of jurisdiction.
Injuries --Claimant suffered a left knee injury.
Attorney(s) - Plaintiff --K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense --For WCF: Floyd W. Holm; for Tekton: Eugene C. Miller Jr.; for Employers’ Reinsurance Fund: Edwin C. Barnes of Clyde, Snow, Sessions & Swenson
Facts/Contentions --Claimant originally injured his knee on 9/28/81 and injured it again on 12/2/82. He stated that he re-injured the knee on 2/5/95 when he slipped on some water at work. The ALJ found that this incident constituted a new injury. However, claimant did not file an application for benefits until September of 2003, long after the 180-day statute of limitations had expired. Apparently the claims for the 1981 and 1982 injuries were also filed after the statute of limitations had expired for those injuries.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Brigitte Kearney vs. Newspaper Agency Corporation; and Workers’ Compensation Fund
Case Number --2002658
Court/Judge --Eblen; then Sessions
Verdict/Settlement --Order, 2/05
Amount --The ALJ adopted the medical panel’s report and found that claimant failed to meet the Allen test for medical and legal causation. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered a re-injury of a pre-existing condition.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Eugene C. Miller Jr.
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel. Facts/Contentions --A hearing was held before ALJ Eblen on this claim; the case was referred to the medical panel and reassigned to ALJ Sessions after the hearing. No objections to the medical panel’s report were received.
Employer/carrier contended that claimant failed to meet the Allen test for re-injury involving a pre-existing condition. In Allen V. Industrial Commission, the Utah Supreme Court ruled that a previously injured worker seeking benefits for a re-injury must prove that the work activities which led up to the re-injury exceeded those a person might encounter in everyday life, such as changing a tire, lifting a toddler or taking a full garbage pail out to the curb.
The medical panel found claimant failed to meet the Allen test.

WORK INJURY CLAIM
Case Type --WA, MS; Work-related injury claim, miscellaneous (chemical spill)
Case Name --Corey D. Hird vs. Auto Zone, Incorporated and/or Liberty Mutual Insurance Company
Case Number --2003680
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 2/05
Amount --The ALJ adopted the medical panel’s report and ordered employer/carrier to pay claimant’s outstanding medical expenses, if any. The ALJ reserved the issue of permanent partial disability as unripe for adjudication. The ALJ dismissed the claim for additional temporary total disability benefits with prejudice.
Injuries --Claimant suffered nausea, eye irritation, dizziness and odor intolerance. Claimant contended that he developed neurotoxicity several months after he was exposed to the spill.
Attorney(s) - Plaintiff --Timothy C. Allen
Attorney(s) - Defense --Bret M. Hanna of Jones, Waldo, Holbrook & McDonough
Expert Witness(es) --Because of conflicting medical testimony, the parties in this case waived their rights to a hearing and stipulated to the referral of the case directly to a medical panel chaired by Dr. Alvin Wirthlin--neurologist.
Damages --Employer/carrier paid claimant $3,667.38 for medical expenses and $214.26 in temporary total disability benefits.
Facts/Contentions --Claimant was exposed to a spill of an automotive parts cleaner known as “Chem-Dip.” He claimed his exposure to the Chem-Dip caused him to suffer immediate symptoms such as nausea, dizziness and eye irritation, and also that the Chem-Dip later caused him to develop neurotoxicity after a latent period of several months.
Employer/carrier disputed the claim for benefits in connection with the neurotoxicity and contended that they had already paid claimant all of the workers’ compensation benefits to which claimant was entitled.
The medical panel’s report stated that development of neurotoxicity after so long a latent period was without precedent in a single exposure to a solvent spill. The panel therefore determined that the neurotoxicity claimant suffered was not caused by his exposure to the Chem-Dip, although the other symptoms he suffered immediately after the exposure were caused by the exposure.

WORK INJURY CLAIM
Case Type --WA: Work-related injury claim
Case Name --Gabriel S. Ponte vs. Jaric Robinson and/or Rock Solid
Case Number --20031035
Court/Judge --Eblen; then Sessions
Verdict/Settlement --Order, 2/05
Amount --ALJ Sessions found claimant failed to meet his burden of proving medical and legal causation with respect to his work injury claim. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant lost the tip of his left-hand ring finger.
Attorney(s) - Plaintiff --Claimant failed to file his pretrial disclosures and did not appear at the hearing on his claim.
Attorney(s) - Defense --For Uninsured Employers’ Fund: Lorrie Lima; uninsured employer Jaric Robinson appeared individually and as president of Solid Construction, Incorporated.
Damages --Claimant sought permanent partial disability benefits, claiming that he suffered permanent impairment as a result of his industrial injury.
Facts/Contentions --Claimant stated in his application for benefits that he was injured by a power table saw at work.
After claimant filed his request for benefits, the Labor Commission assigned the claim to ALJ Eblen, who scheduled a hearing on the matter and ordered the parties to file pre-trial disclosures. The UEF filed an answer on behalf of uninsured employer Jaric Robinson in which the UEF denied liability; the UEF also filed the required pre-trial disclosures, but claimant did not file the required pre-trial disclosures. Claimant did not appear at the scheduled hearing on his claim and did not contact the Labor Commission. The hearing was held as scheduled, with attorney Lima appearing for the UEF and uninsured employer Jaric Robinson appearing individually and as the president of Solid Construction, Incorporated. Following the hearing, at which ALJ Eblen presided, the matter was assigned to ALJ Sessions, who found that claimant failed to participate meaningfully in the proceeding by not appearing at the hearing and by failing to file his required pre-trial disclosures.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Sakir Bihcic vs. Daily Foods, Incorporated and/or Workers’ Compensation Fund
Case Number --20040019
Court/Judge --Hann; then Lima
Verdict/Settlement --Order, 2/05
Amount --ALJ Lima found that claimant suffered a work accident which was the cause of his injury. The ALJ further found that claimant provided his employer with sufficient notice of his work accident and injury within the time limit allowed by law. The ALJ therefore ordered employer/carrier to pay claimant $10,444.80 in accrued temporary total disability compensation for the time he was unable to work and $14,966.64 in accrued permanent partial disability compensation 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. Employer/carrier must also pay claimant’s related medical expenses, including those for the recommended future treatment of his industrial injury.
Injuries --Claimant was originally diagnosed with right sacroiliitis with radicular symptoms and later diagnosed with a right herniated nucleus pulposus at L5/S1. He underwent a laminectomy/discectomy to repair his industrial lumbar spinal injury. Dr. Brown gave claimant a 13% whole-person impairment rating and found him to be medically stable three months after his surgery; Dr. Passey and Dr. Chung assessed claimant’s whole-person impairment at 13% and found him to be medically stable six months after his surgery.
Attorney(s) - Plaintiff --Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense --Elliot K. Morris
Expert Witness(es) - Plaintiff --Dr. Nelson--treating physician
Expert Witness(es) - Defense --Dr. Alan Brown; Dr. Mark Passey; Dr. Jeff Chung--independent medical evaluation (IME) physicians
Damages --Employer/carrier had not paid claimant any workers’ compensation benefits by the time the hearing was held on this matter.
Facts/Contentions --Claimant was working the second shift on the day he was injured, and his responsibilities included starting the pump room machine. He said he tried to start the machine at the beginning of his shift, but there was no power available. Claimant said he climbed a metal ladder attached to a wall to reach the breaker box, where he turned the power on. Claimant said he descended the ladder at a fast rate, using both hands, and turned his body sideways as he approached the bottom so that only one hand remained on the ladder. Claimant said that as he turned, he hit his right hip on the edge of a metal table and felt a sharp pain and a burning sensation in his right hip. At the end of his shift, claimant said, he returned home and showed his wife the red mark on his hip where he hit the table. He reported the incident to his supervisor three or four days later, in a conversation at which his wife was present; he said he sought medical care seven days later when his pain did not abate.
Employer/carrier originally contended that claimant did not report his industrial accident and injury within 180 days of the date on which it occurred as Utah law requires. At the hearing before ALJ Hann, claimant’s supervisor said he did not understand what claimant was telling him when he reported the work accident three or four days after it occurred, although claimant said he spoke English when he made the report. The supervisor said he sometimes used a translator when talking to claimant about his work duties, but did not use a translator during the conversation he had with claimant about claimant’s work injury. Claimant said he drafted a written account of the accident but did not submit the written account to his supervisor; he explained that because he had made a verbal report to the supervisor and received medical care, he believed that he did not need to submit the written documentation of the injury. Some time after the hearing, the case was reassigned to ALJ Lima.
The medical record showed that claimant’s injury was not identified as a work injury on his first visit to the clinic because of the language barrier, but on his follow-up visit his daughter accompanied him and translated for him, so the whole story of the industrial accident was included in the medical record. Dr. Nelson felt claimant’s injuries were related to the accident he suffered at work.
Drs. Passey and Chung determined that claimant definitely suffered some sort of a lumbar spinal injury, and the surgery he underwent was medically necessary to treat the injury; however, the two IME physicians stated that they could not determine whether the injury resulted from the work accident due to language and cultural barriers. By way of future treatment, the two evaluating physicians recommended a functional restoration program with cognitive behavioral emphasis or ongoing pain management, possibly including opioids.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Beth C. Stanley vs. Williamsburg Retirement Community and Utah Property and Casualty Insurance Guaranty Association (for Wasatch Crest Insurance)
Case Number --2002880
Court/Judge --Hann; then Lima
Verdict/Settlement --Order, 2/05
Amount --ALJ Lima adopted the medical panel’s report and found that claimant suffered industrial injuries for which she received reasonable and necessary treatment, including surgery. The ALJ ordered employer/carrier to pay claimant $3,998.40 in accrued temporary total disability compensation and $824.67 in permanent partial disability compensation for her 3% related whole-person impairment. These amounts are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney. Credit is to be given for any benefits previously paid to claimant, including the payment for the 3% impairment rating. Employer/carrier must also pay claimant’s related medical expenses, including the costs of the surgery.
Injuries --Claimant suffered injuries to her left shoulder, knees, right neck/shoulder/upper back, and right wrist; she underwent surgery to repair the right wrist injury. Dr. Knoebel assessed claimant’s whole-person impairment at 3% before the surgery. No other impairment rating was submitted. ALJ Lima found that claimant was temporarily and totally disabled for six months following her surgery, when she stabilized medically.
Attorney(s) - Plaintiff --Tracy Gundersen of Bertch Robson
Attorney(s) - Defense --Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel.
Facts/Contentions --Claimant worked as a housekeeping supervisor. She said at the hearing before ALJ Hann that she was holding the lid of a washing machine open with her left hand and had her right hand on the front of the machine so she could tip it away from the wall for cleaning underneath it. Claimant said the machine slipped forward and she landed on top of it, falling into it because it was open. Claimant said she did not experience any immediate pain, but sought medical care after she woke up in pain on the day following the incident.
Employer/carrier agreed that the accident occurred, but disputed the extent of claimant’s impairment and suggested that her right wrist injury might not have been caused by the industrial accident she suffered. The case was reassigned to ALJ Lima after the hearing and the referral to the medical panel. The medical panel found claimant’s industrial accident caused her right wrist injury, and the surgery she underwent was reasonable and necessary to treat her industrial right wrist injury.

WORK INJURY CLAIM
Case Type --WA, SF; Work-related injury claim
Case Name --William Perdue vs. Labor Ready of Utah and/or American Mutual Insurance
Case Number --20031144
Court/Judge --Eblen; then Sessions
Verdict/Settlement --Order, 2/03
Amount --ALJ Sessions noted that while there was no proof that the letter from his employer ever reached claimant, an injured worker has a duty under Utah law to contact his employer, check on his employment status and apprise the employer of any changes in his injury status, such as his release to return to light-duty work. Since claimant failed to do so in this case, the ALJ wrote, claimant should not be entitled to profit from this failure and was not entitled to benefits for the time period after his employer wrote the letter offering him light-duty work, even if claimant did not stabilize medically until eight months later.
The ALJ wrote that claimant was entitled to recover the medical costs associated with his injury and was also entitled to benefits for his related whole-person impairment. The ALJ therefore ordered employer/carrier to pay claimant $2,261 in accrued temporary total disability for the period from the date of his injury until the date when his employer wrote the letter offering claimant light-duty work. Employer/carrier must also pay claimant $985.92 in accrued permanent partial disability benefits for his 4% related whole-person impairment. These benefits are due and payable in a lump sum plus interest, with an offset allowed for any previously paid benefits; $325 is to be deducted from these awards for attorney’s fees and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses plus interest, with an offset allowed for any such expenses previously paid.
Injuries --Claimant suffered a crush injury to his left foot which left him with a 4% related whole-person impairment.
Attorney(s) - Plaintiff --J. Keith Henderson, Ogden
Attorney(s) - Defense --Kristy L. Bertelsen of Blackburn & Stoll
Facts/Contentions --After claimant filed his application for benefits, a hearing on the case was held before ALJ Eblen, and the case was then assigned to ALJ Sessions. ALJ Sessions found that claimant suffered a work injury while unloading a truck, when a 450-pound steel door fell approximately eight feet and landed on his left foot.
Claimant’s employer contended that it offered claimant light-duty work, producing a copy of a letter referring to claimant’s work restrictions. Claimant had been released to return to light-duty work for over a month by the time the letter was written by his employer. The employer contended that because claimant failed to accept the light-duty work offered him in the letter and did not return to work, employer/carrier’s liability ended under Utah law when the employer wrote the letter.
Claimant reached medical stability approximately eight months after his employer wrote the letter offering him light-duty work, and he contended that he was entitled to benefits for that time.

CLAIM RELATED TO
WORK INJURIES
Case Type: WA; Claim related to industrial injuries
Case Name: Paul A. Griego vs. Jordan School District and/or Employers’ Reinsurance Fund
Case Number: 2003119
Court/Judge: La Jeunesse
Verdict/Settlement: Order, 3/05
Amount: The ALJ adopted the medical panel’s findings and ruled that claimant’s low back problems were permanently and significantly aggravated by his 2000 industrial accident. The ALJ found that claimant was unable to continue his work as a school bus mechanic because of the restrictions imposed on him by his industrial and non-industrial injuries and medical conditions. The ALJ found claimant was not capable of working at any of the jobs he had held in his 44-year work history and at age 64 was not a viable candidate for vocational retraining. Claimant indicated his willingness to return to the District and do paperwork, bu t the ALJ found the preponderance of the evidence indicated that light-duty work was not offered him by his employer and no reasonably available work existed for claimant in light of his medical restrictions. The ALJ therefore ruled that claimant qualified as permanently and totally disabled because of the aggravation of his pre-existing injuries caused by the 2000 industrial accident.
The ALJ ordered the District to pay claimant accrued permanent total disability subsistence benefits of $433 per week for the period beginning 4/24/2000 and ending 2/7/2005. These benefits are due and payable in a lump sum of $108,003.19 less credit for any benefits previously paid and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. The ALJ further ordered the District to pay claimant subsistence payments of $433 per week starting 2/08/05 and continuing until further benefits are determined following the completion of additional procedures by the Labor Commission as required by Utah law. The District must pay all claimant’s related medical expenses plus a travel allowance if claimant is required to travel to seek medical care. The ALJ gave the District 10 days from the date of this order to submit a re-employment plan. The ALJ dismissed the ERF from this action.
:Injuries: Claimant suffered low back injuries; after the 2000 injury he was diagnosed with a herniated disc at left L3/4 with associated radiculopathy. He suffered injuries to his ankle, hip and shoulder in the 1997 accident. After the 1997 accident, claimant underwent distal clavicular resection and acromioplasty to correct a right shoulder subacromial impingement caused by a bone spur. His treating physicians also diagnosed non-industrial acromioclavicular arthritis/bursitis.
Claimant also had several other non-industrial conditions and was given a 6% whole-person impairment rating for a cervical injury, a 5% whole-person impairment rating for a left knee injury, and a 6% whole-person impairment rating for a right knee injury which was surgically corrected. None of these injuries or the impairments they caused were at issue in this case. In addition to these injuries, claimant also had significant non-industrial vascular disease, coronary problems and diabetes mellitus. Claimant had qualified for and was receiving Social Security disability payments at the time of the hearing on his industrial injury claims.
Attorney(s) - Plaintiff: Scott F. Squire
Attorney(s) - Defense: For Jordan School District: Thomas C. Sturdy of Blackburn & Stoll; for ERF: Lorrie Lima
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. Joel Dall–physiatrist.
Facts/Contentions: Claimant worked for self-insured employer as a school bus mechanic. He contended that he was injured at work on three separate occasions: in 1991, in 1997 and again in 2000. He stated that the first accident, in 1991, occurred while he was changing the brake drums on a school bus, which was sitting on a lift about four feet off the ground. Claimant stated that he initially removed the brake drums and replaced them with a new set, but then noticed cracks in the replacement drums. Claimant removed the replacement drums and replaced them with a third set. The lifting involved in replacing each set of brake drums came to about 50 pounds. After this incident, claimant said, his back became so sore that he could hardly walk; he also noticed tingling in his legs, and his right leg went numb. Claimant sought medical attention and underwent physical therapy off and on. He said the pain in his back never went away after this first accident in 1991.
The second accident, in 1997, occurred when claimant went to work early in order to help a driver start his school bus and stepped from the shop building into a trench 12" wide and 2 feet deep. Claimant’s right foot went into the trench, and he fell to the ground on his side, injuring his right ankle, hip, and shoulder. Claimant did not lose any time from work following this incident, but he did undergo some physical therapy. He said his shoulder remained stiff.
The third accident, in 2000, occurred while claimant was replacing a driver’s seat in a school bus. The seat weighed between 75 and 100 pounds (the ALJ averaged this estimate to a weight of eighty-seven and a half pounds). Claimant had a helper to assist him in lifting the seat into and out of place in the bus, but the process required claimant to stand on the “dog house” and lean over at an awkward angle in order to position the seat. Claimant said he removed and replaced the seat three times before the driver decided to settle on the original seat. By the time this happened, claimant said, his lower back hurt so badly that he could hardly walk and could lift nothing of substance. He was off work for a week after this incident.
Claimant contended that his three industrial accidents rendered him permanently and totally disabled. In 2000, Dr. Warren Stadler permanently restricted claimant to light-duty work and opined that he was not a candidate for surgery or for vocational retraining. Dr. Wood felt claimant should not work at all, while David Wetzel, RPT performed a functional capacity evaluation and restricted claimant’s lifting to 28.5 pounds at waist level, 18.5 pounds at shoulder height, 17 pounds overhead and 33 pounds carrying. Del Felix PT performed another functional capacity evaluation in 2003 and restricted claimant to light-duty work Claimant’s work restrictions also required him to alternate sitting and standing at very short intervals.
Self-insured employer contended that claimant’s back injuries were pre-existing. Employer pointed out that the medical record showed claimant sought medical care for a week-long episode of lower back pain in 1988. After 1991, claimant underwent a CT scan and two MRIs, and various medical providers and independent medical evaluation (IME) physicians reached conflicting conclusions on the question of whether his prior back pain had resolved completely before the first industrial accident.
The medical panel examined claimant, reviewed his medical records and concluded that claimant suffered from moderate to severe pre-existing degenerative lumbar disc disease with facet atrophy, which could also be labeled lumbar spondylosis. The panel found that the injuries caused by the1991 incident resolved completely within several weeks with no further symptoms evident for nearly two years. The panel found that the second injury in 1997 did not primarily affect claimant’s lower back. However, the panel found, the third injury in 2000 did aggravate claimant’s pre-existing lumbar degenerative disc disease permanently and significantly and caused his herniated disc at left L3/4. The panel found that the right shoulder subacromial spur for which claimant underwent shoulder surgery was not caused by his industrial accident of 1997.

WORK INJURY CLAIM
Case Type: WA; Work-related injury claim
Case Name: .James Huntsman vs. Danny Leavitt Construction and/or Workers’ Compensation Fund
Case Number: 2002649
Court/Judge: Eblen; then Sessions
Verdict/Settlement: Order, 3/05
Amount: ALJ Sessions adopted the medical panel’s report and found that claimant‘s work activities significantly aggravated his pre-existing cervical condition. The ALJ found that claimant’s work activities which led up to the re-injury satisfied the Allen test for causation. Under Utah case Law (Allen v. Industrial Commission), a previously injured worker seeking workers’ compensation benefits for a re-injury must prove that the work activities leading up to the re-injury exceeded those a person might encounter in everyday life, such as lifting a toddler, changing a tire or taking a full garbage pail out to the curb. The ALJ ordered employer/carrier to pay claimant $307 per week in temporary total disability benefits for the period beginning on 9/13/2001 and continuing until claimant stabilizes medically or until benefits have been paid for 312 weeks. Employer/carrier must also pay claimant’s related medical expenses and a travel allowance if claimant must travel to seek medical care. Accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney. Credit is to be given for any benefits previously paid by employer/carrier.
Injuries: Claimant suffered a significant aggravation of a pre-existing cervical injury.
Attorney(s) - Plaintiff: Marsha Atkin of Atkin & Associates
Attorney(s) - Defense: Elliot K. Morris
Expert Witness(es): Because of conflicting medical testimony, this case was referred to a medical panel.
Facts/Contentions: The original hearing was held before ALJ Eblen, with the findings/conclusions/order issued by ALJ Sessions.
Claimant worked as a framer for employer. He said he had to leave work early on 9/13/2001 because of burning pain in his left arm and shoulder after lifting and carrying multiple sheets of sub-flooring materials weighing approximately 50 pounds each. He has not been able to return to work since this incident occurred.
Employer/carrier denied that claimant’s work activities caused his symptoms, pointing out that the medical record showed claimant had a history of prior cervical problems and had undergone cervical fusion surgery. The medical panel found that claimant’s work activities caused a significant re-aggravation of his pre-existing cervical injury, and claimant has not yet stabilized medically from this re-injury. Though the panel noted that claimant might have sustained a 16% whole-person impairment which would probably improve when he reaches medical stability, the ALJ found this comment to be “neither persuasive nor conclusive” and disregarded it.

ORDER ON REQUEST FOR
RECONSIDERATION
Case Type: WA; Work-related injury claim
Case Name: .Larry Flament vs. Pride Transport and Business Insurance Company
Case Number: 980814
Court/Judge: This order was issued by the Appeals Board of the Labor Commission, consisting of Colleen Colton, chair; Patricia S. Drawe; and Joseph E. Hatch.
Verdict/Settlement: Order, 3/05
Amount: The Board found the medical panel’s findings persuasive. On that basis, the Board found its earlier determination to be correct. The Board therefore declined to reconsider its earlier ruling affirming the ALJ’s finding that claimant is not entitled to additional workers’ compensation benefits and dismissing this claim with prejudice.
Injuries: Claimant suffered unspecified injuries.
Attorney(s) - Plaintiff: K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense: Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Facts/Contentions: After claimant filed a request for workers’ compensation benefits, claiming his work at Pride caused his injuries, the ALJ in the case referred the medical issues in the case to a medical panel. The panel found that there was no medical causal connection between claimant’s injuries and his work activities. The ALJ adopted the medical panel’s report and denied benefits.
Claimant appealed the case and requested a review by the Appeals Board of the Labor Commission. The Appeals Board affirmed the ALJ’s decision. Claimant then filed this motion asking the Appeals Board to reconsider its earlier ruling. Claimant contended that his medical records proved his work at Pride caused his injuries. The Appeals Board noted that the medical panel appointed by the ALJ had access to claimant’s complete medical record and also examined claimant himself. The Board noted that the panel had every resource which would allow its members to reach an accurate determination with regard to the issue of medical causation in this claim.

OCCUPATIONAL DISEASE CLAIM
Case Type: OD; Occupational disease claim
Case Name: .Jeanette L. Young vs. America Online and Travelers Insurance
Case Number: 20021209
Court/Judge: Hann; then Lima
Verdict/Settlement: Order, 3/05
Amount: The ALJ adopted the medical panel’s report and found that the preponderance of the evidence did not support claimant’s contention that she suffered occupational disease as a result of her exposure to paint fumes at work. The ALJ therefore dismissed this claim with prejudice.
Injuries: Claimant suffered headaches, diffuse overall muscle and joint pain, dizziness, fatigue and general malaise.
Attorney(s) - Plaintiff: Claimant was represented pro se.
Attorney(s) - Defense: Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Expert Witness(es): Because of conflicting medical testimony, this case was referred to a medical panel.
Facts/Contentions: The hearing on this case was held before ALJ Hann, with the findings/conclusions/order issued by ALJ Lima.
Claimant worked as a customer service representative for employer. On the night her alleged occupational exposure began, she had returned to her work on the 3-PM-to-midnight shift after being off for foot surgery. Two days before she returned, a three-week painting project began at the AOL work center. The work center was located in a one-floor, 50,000-foot building with open cubicles and perimeter offices. At one end of the center, open cubicles were separated from the main area by a wall with two hallways leading to the main area. Painting was done from 10 PM to 6 AM, and 2.5'-square and 6' square fans were positioned near emergency exits and in hall ways to draw fumes out of the area being painted. On the night claimant returned to work, the painters were working on a wall in the smaller area about 10' from where she was sitting. Claimant said she began experiencing a headache and moved to a neighboring cubicle which was nearer to the door and the fans. She said that the next day she felt tired and headachy, with diffuse muscle pain, but she returned to work that night. Though no painting was being done in the area where she was working that night, she said, she could still smell paint fumes. She said she continued to work for five more nights and then had to stop and seek medical care because her symptoms had worsened drastically.
Employer/carrier denied that claimant’s exposure to the paint fumes caused her symptoms. Employer/carrier contended that the medical record showed claimant had a prior history of fibromyalgia, migraine and Meniere’s disease, and one of her treating physicians felt she also had systemic lupus. Her blood chemistries and other lab work results were normal.
The medical panel noted that it was by no means clear that claimant had fibromyalgia or lupus. However, the panel opined, assuming that claimant did have fibromyalgia, there was no causative link between the exposure to paint fumes and her increase in symptoms. The panel added that the medical literature does not detail any known pathway of toxicity that is biologically plausible for this type of causal association. There is also, according to the panel, no consistent observation in the medical literature about specified doses of exposure leading to symptoms of fibromyalgia, and there is no demonstrated epidemiological statistical association between exposures to paint fumes and fibromyalgia. The panel noted, however, that there is medical evidence that worry, alarm and concern over chemical exposures can lead selected persons to feel ill if they have pre-existing problems such as fibromyalgia. The panel opined that probably the exposure claimant experienced was only incidental to her increased symptoms.

WORK INJURY CLAIM
Case Type --WA; work-related injury claim
Case Name --Robert Ericksen vs. Marriott Hotel and/or Old Republic Insurance Company
Case Number --040962
Court/Judge --Sessions
Verdict/Settlement --Order, 2/03
Amount --The ALJ granted defendants’ motion and dismissed this claim without prejudice.
Attorney(s) - Plaintiff --David K. Smith
Attorney(s) - Defense --David H. Tolk of Richards, Brandt, Miller & Nelson
Facts/Contentions --After claimant filed this request for benefits in 2004, employer/carrier contended, and the ALJ determined, that claimant had not provided sufficient supporting medical information to allow the matter to proceed to a hearing. Employer/carrier filed a motion to dismiss the claim.
In January of 2005, claimant filed a motion for an extension of time in which to provide the necessary medical information, and the ALJ granted the motion and allowed claimant 30 days. When more than 30 days passed without any response or supporting documentation from claimant, the ALJ determined that claimant’s failure to respond constituted good cause for dismissal of the claim.

ORDER ON MOTION FOR REVIEW
Case Type --OD; Occupational disease claim
Case Name --Karen S. Wood vs. IHC Bryner Clinic
Case Number --011138
Court/Judge --This order was issued by Utah Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 2/05
Amount --The Commissioner applied the “last injurious exposure rule” to this claim and found that IHC is responsible for paying claimant for her entire 8% related whole-person impairment. The Commissioner therefore declined to review the case and ordered IHC to pay claimant $310 per week for 25 weeks in permanent partial disability benefits for her occupational disease. IHC must also pay claimant’s related medical expenses for treatment of her occupational disease. Any of these benefits that were not paid when they first came due 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 attorney Seaman.
Injuries --Claimant suffered a latex allergy.
Attorney(s) - Plaintiff --James E. Seaman; Richard C. Henriksen Jr. of Henriksen & Henriksen
Attorney(s) - Defense --Mark D. Dean of Blackburn & Stoll and Elliot K. Morris
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel.
Facts/Contentions --Claimant developed a latex allergy after 15 years of exposure in the course of her employment at various health care facilities, including facilities in Wyoming and Georgia. Claimant worked for IHC from September 1992 through December 1997. Claimant also experienced some non-work-related exposure to latex. IHC was insured by the Workers’ Compensation Fund through January 16, 1995; after that date the employer was self-insured.
The parties agreed to waive a hearing and refer the facts and issues directly to the medical panel. The medical panel found that claimant had an 11% whole-person impairment, with 8% stemming from work-related latex allergies. The panel found that the remaining 3% of claimant’s impairment was caused by non-work-related asthmatic/allergic condition.
The ALJ adopted the medical panel’s report and awarded benefits accordingly. In considering the motion for review, the Commissioner also accepted the medical panel’s findings.
IHC objected to the award of benefits and asked the Commission to review the ALJ’s decision. IHC contended that the ALJ erred in applying various provisions of the Utah Occupational Disease Act when she computed IHC’s liability.
The Commissioner applied the relevant provisions of the Occupational Disease Act in step-by-step fashion. First, the Commissioner found that claimant did suffer from a compensable occupational disease. Next came apportionment. The Commissioner wrote that Section 34A-3-110 of the Act establishes an apportionment formula that must be applied to occupational disease claims when any one of four criteria is met. The Commissioner wrote that though this section of the Act is “poorly drafted and difficult to apply,” claimant’s allergy met two of the criteria: her latex allergy was partly causally related to employment with non-Utah employers and it was also partly causally related to non-work exposure. The Commissioner noted that because this claim was limited to the latex allergy, and because the latex allergy was the “occupational disease” under consideration, the latex allergy was the entire cause of the disability at issue. “Consequently,” the Commissioner wrote, “Section 34A-3-110 imposes no reduction on Ms. Wood’s occupational disease benefits for her latex allergy, and she is entitled to permanent partial disability compensation for the entire 8% latex allergy impairment, as well as to medical expenses necessary to treat that allergy.” The Commissioner then turned to the question of whether IHC should be liable for the full amount of the benefits to which claimant is entitled for her occupational disease. The Labor Commissioner found that the “last injurious exposure rule” applied in this case: Where an employee worked for at least 12 consecutive months in the place where she last suffered exposure, and if her exposure in the course of her employment with that employer was a substantial contributing medical cause of her occupational disease, the last employer shall be the only employer liable for benefits. The Commissioner noted that claimant was employed at IHC for approximately five years, and her latex exposure there was a substantial contributing cause of her allergy.

ORDER ON MOTION FOR REVIEW
Case Type --WA; Work-related injury claim
Case Name --Tamara S. Twitchell vs. Deseret Generation & Transmission and Utah Guaranty Fund
Case Number --040462
Court/Judge --This order was issued by Utah Labor Commissioner R. Lee Ellertson.
Verdict/Settlement --Order, 2/05
Amount --The Commissioner took note of claimant’s explanation of the reason why her expenses were not submitted when she thought they had been. “However,” the Commissioner wrote, “the undisputed facts establish that Ms. Twitchell did not ‘submit’ those expenses to Deseret....The Commission has no alternative but to concur with Judge Hann’s determination that Ms. Twitchell’s right to additional medical benefits is extinguished by operation of [Utah Code Annotated] Section 34A-2-417(1).” The law, the Commissioner wrote, does not allow for a medical provider’s failure to submit medical expenses in spite of an injured worker’s assumption that the physician was submitting them.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Facts/Contentions --When claimant filed her request for medical benefits, the ALJ who was assigned to the claim granted a defense motion for summary judgment on grounds that it had been over three years since claimant had submitted any medical expenses to her employer for payment. Under Utah law, an employer’s obligation to pay an injured worker’s medical expenses lapses in a case if no medical expenses are submitted by the injured worker in connection with the claim over a period of three years or more.
Claimant asked the Labor Commissioner to review the ALJ’s decision, explaining that she had incurred medical expenses during the three-year period in question and believed that they had been submitted to her employer’s insurance carrier. However, claimant added, her treating physician failed to submit the expenses.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Erin Smith vs. Modern Display and/or Workers’ Compensation Fund
Case Number – 2003498
Court/Judge – Marlowe
Verdict/Settlement – Order, 4/05
Amount – The ALJ ruled that claimant suffered a work injury and reported it within the 180 days allowed by law. The ALJ ordered employer/carrier to pay claimant’s related medical expenses.
Injuries – Claimant suffered a strain injury to the outside of her left foot.
Attorney(s) - Plaintiff(s) – Claimant was represented pro se.
Attorney(s) - Defense – Lisa Altman
Damages – Claimant incurred approximately $450 in past medical expenses.
Facts/Contentions – Claimant worked for employer as a floral designer. The company puts up Christmas decorations for various clients, including country clubs, hotels, and businesses, and claimant was on her feet during an entire week taking down these decorations after the holidays. Claimant stated that during this week she lifted and carried items weighing up to 75 pounds by herself and items weighing up to 200 pounds with other employees’ assistance. On Saturday, January 11, claimant said, she helped take down decorations in a cabin at Sundance, including a 15' Christmas tree which claimant and another employee carried up three flights of stairs by themselves. The next day, claimant said, she felt a sharp pain in her left foot when she placed her weight on it as she was getting out of bed. She sought medical care two days later, wore a cast boot for three weeks and returned to normal footwear thereafter with no further difficulties. Claimant did not miss any time from work.
Employer/carrier contended that claimant simply “stepped funny” and did not suffer a work-related injury. The medical record indicated that claimant did not report the injury as resulting from work on her first visit to the doctor, although she did report it as a work injury on her second visit. Claimant stated that she originally decided not to report the injury as work-related because the condition resolved quickly and it was easier just to pay her $15 co-pay and not go through the hassle of dealing with a work-related injury claim. However, claimant added, she had only worked for employer for about two months at the time she was injured, and she discovered after her initial visit to the doctor that she would not be covered by health insurance until February, 2003. Therefore, claimant stated, her private insurance did not cover this bill, and she decided to report the injury as work-related. Claimant’s doctor indicated that the injury was causally related to claimant’s work activities, and employer/carrier did not present any contradictory medical testimony.
The ALJ wrote in her opinion that the sentence in the medical record upon which employer/carrier relied in their defense against this claim could also be interpreted to mean that claimant simply felt pain on the outside of her foot when she first stepped out of bed. Therefore, the ALJ found, plaintiff’s claim that she suffered cumulative trauma to the foot was credible.

WORK INJURY/OCCUPATIONAL DISEASE CLAIM
Case Type – WA, OD; Work-related injury/occupational disease claim
Case Name – Leisa Raftery
Case Number – 2003865
Court/Judge – Marlowe
Verdict/Settlement – Order, 4/05
Amount – The ALJ found that claimant suffered a compensable occupational disease. The ALJ ordered employer/carrier to pay claimant $9,025 in accrued temporary total disability compensation. Benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses, including any expenses incurred by claimant in travel to seek medical treatment.
Injuries – Claimant suffered exposure to ammonia vapors which caused shallow blisters and small ulcers in her nose and mild erythema in her throat. Dr. Abel later diagnosed claimant with bronchitis and bronchospasm.
Attorney(s) - Plaintiff(s) – Raymond N. Malouf of the Malouf Law Offices, Logan
Attorney(s) - Defense – Thomas C. Sturdy of Blackburn & Stoll
Expert Witness(es) - Plaintiff(s) – Dr. Brown; Dr. Abel
Expert Witness(es) - Defense – Drs. Holmes and Pinter–independent medical evaluation (I:ME) physicians Damages – Claimant sought payment of her medical bills and compensation for the 25 weeks she was off work.
Facts/Contentions – Claimant worked for employer as a forklift driver. Ammonia was used in the company’s refrigeration system, and on October 30, 2002, this ammonia was vented into the air where claimant was working. Claimant stated that she was exposed to ammonia vapors for the majority of her shift that day and left early. Claimant complained about the vapors and atmospheric testing was done, revealing a range of 0 to 21 parts per million. The highest rating did not exceed NIOSH/OSHA limitations, and claimant was not wearing a monitor the day of her exposure, however, Drs. Holmes and Pinter noted later that without a monitor, it was impossible to ascertain the levels of ammonia vapors to which claimant was actually exposed, and they might have been much higher. Claimant sought medical care the following day. She saw Dr. Abel a month and a half later. Her medical providers felt that the treatment she received followed her exposure to the ammonia vapors normalized her airway functions and stabilized her medically.
Employer/carrier contended that claimant suffered from mild pre-existing asthma. Employer/carrier argued that claimant was therefore obligated to prove that her industrial exposure met the Allen test for pre0-existing injuries or diseases. Utah case law (Allen v. Labor Commission) says that an injured employee who suffers from a pre-existing condition must prove that the work activities leading up to the re-injury exceeded those a person might encounter in everyday life. Employer/carrier contended that in this case the industrial exposure did not satisfy the Allen test.
The ALJ noted that at the hearing on her case, claimant presented both the work injury and the occupational disease theory regarding her claim. However, the ALJ found the occupational disease theory was supported by the mechanism of injury. The ALJ found that claimant’s industrial exposure to the ammonia vapors medically aggravated her pre-existing reactive airway disease (asthma). The ALJ further found that this exposure constituted an “extraordinary” stress and thus satisfied the Allen test.

FALL INJURY CLAIM
Case Type – WA, SF; Work-related slip/fall injury claim
Case Name – Terry K. Knorr vs. Jordan School District
Case Number – 20011282
Court/Judge – George
Verdict/Settlement – Order, 4/05
Amount – The ALJ adopted the medical panel’s report and found that claimant’s fall at work temporarily aggravated her pre-existing spinal condition, but did not cause claimant’s ongoing back problems, as claimant stabilized from the industrial fall eight months after it happened The ALJ therefore ordered self-insured employer to pay claimant 36 weeks of temporary total disability benefits for the time she was off work following her fall. 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, and credit is to be given to employer for any benefits previously paid. Self-insured employer must also pay all medical expenses associated with the temporary re-aggravation of claimant’s pre-existing back injury.
Injuries – The medical panel found claimant suffered a re-aggravation of a pre-existing low back injury. She has a 13% whole-person impairment from her spinal injuries, but the panel felt none of this impairment is attributable to the work-related injury she suffered in the fall.
Attorney(s) - Plaintiff(s) – Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense – Thomas C. Sturdy of Blackburn & Stoll
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel.
Facts/Contentions – Claimant slipped and fell at work on May 22, 1997, landing on her back.
She reported the accident promptly and received medical care. Claimant was off work for 36 weeks following the fall; she eventually underwent a spinal block eight months after she fell. After undergoing the spinal block, claimant stated, she continued to experience intermittent back and leg pain depending on her level of activity. Finally, when the back and leg pain flared up and did not subside for three months, claimant underwent back surgery in 2001.
Self-insured employer and its third-party administrator Pinnacle Risk Management contended that the medical record showed claimant suffered from a pre-existing spinal condition which her fall at work merely aggravated temporarily. Employer denied liability for the surgery and other benefits associated with claimant’s long-term back care.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Philip Hubert vs. Roth Distributing and/or Virginia Surety Company
Case Number – 2003916
Court/Judge – George
Verdict/Settlement – Order, 4/05
Amount – The ALJ found the claimant’s exertion on the day before his symptoms presented was so extraordinary that it easily satisfied the Allen test. (Utah case law in Allen v. Labor Commission says that an injured employee who suffers from a pre-existing condition must prove that the work activities leading up to the re-injury exceeded those a person might encounter in everyday life.) The ALJ therefore ordered employer/carrier to pay claimant $7,677.47 in accrued temporary total disability compensation for the time he was off work and $11,905.92 in permanent partial disability compensation for his 12% related whole-person impairment. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses plus interest if these expenses are outstanding. The ALJ urged claimant to have any health care provider proposing additional medical treatment submit a written plan to employer/carrier for authorization prior to treatment.
Injuries – The medical panel found claimant suffered a re-aggravation of a pre-existing spinal injury. The panel gave claimant a 13% whole-person impairment rating for his spinal injuries, with 12% related to his industrial re-injury.
Attorney(s) - Plaintiff(s) – Sandra N. Dredge of Dredge, Lallatin & Melendez, Provo
Attorney(s) - Defense – Mark A. Riekhof of Dunn & Dunn
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel.
Facts/Contentions – Claimant worked for employer as an assistant warehouse manager. On the date he was injured, he said, he reported to the warehouse at his usual starting time of 8 AM and then continued on to the Sandy Expo Center, where he was to break down the company’s 60-item product display. Claimant said he pulled each display item out of the setting, rocked it up on one side and placed one or more furniture dollies under it, and spun it on the dolly or dollies while shrink-wrap was applied. Display items included three sub-zero refrigerators wight feet tall and five feet wide, weighing approximately 680 pounds each, as well as several smaller refrigerators and six Wolf ranges, the largest of which weighed around 800 pounds. Spinning involved alternately pushing and pulling on two corners with arms fully extended and, in the case of the Wolf ranges, also bending over at the waist. After the units were shrink-wrapped, they were rolled onto the lift gate of a truck, and as soon as they were raised claimant and a co-worker pulled them into the truck. Claimant said he loaded three trucks and unloaded two; when he got back to the warehouse with the third truck at 3 AM, his boss told him to leave the load on the truck until the next shift. Claimant stated that he went home, having put in a 19-hour workday, and fell asleep in his clothes at 4 AM because he was too exhausted to take them off. Two hours later, claimant said, he awoke when his alarm went off and tried to get out of bed to return to work, but experienced such excruciating pain in his back that it dropped him to the floor. He crawled to the bathroom, showered and went to work, where he reported his condition to his supervisor and told him he (claimant) thought it was related to the work activities of the previous day. Claimant was unable to work and left shortly thereafter to seek medical treatment. He was taken off work by treating health care providers and did not return to work for the company because no light duty was available; he was eventually terminated and later underwent back surgery.
Employer/carrier disputed claimant’s degree of industrial whole-person impairment and contended that the medical record showed claimant suffered from pre-existing back injuries. Employer/carrier did not dispute claimant’s account of the work activities that caused his back pain.

TRUCK ACCIDENT INJURY CLAIM
Case Type – WA, TA; Work-related truck accident injury claim
Case Name – Zenon Santiago vs. C. R. England
Case Number – 2003539
Court/Judge – Marlowe
Verdict/Settlement – Order, 4/05
Amount – The ALJ found that because claimant failed to submit bills for medical treatment for a consecutive three-year period, any further claims for medical expenses in this case are barred by Utah law. The ALJ therefore dismissed the claim for medical expenses with prejudice.
The ALJ found claimant failed to prove he suffered any whole-person impairment as a result of his industrial truck accident, since Dr. Tran, who assigned the impairment rating, mentioned only a later non-industrial automobile accident in his assignment of impairment. The ALJ therefore dismissed the claim for permanent partial disability benefits with prejudice.
Injuries – Claimant suffered injuries to his cervical and dorsal spine.
Attorney(s) - Plaintiff(s) – Brian K. Lofgren of Lundell & Lofgren
Attorney(s) - Defense – Ford G. Scalley of Scalley & Reading
Expert Witness(es) - Plaintiff(s) – Dr. Horne; Dr. Tran
Expert Witness(es) - Defense – Dr. Knorpp
Facts/Contentions – Claimant was injured when the truck in which he was a passenger went off the road because the driver feel asleep.
Self-insured employer did not dispute that the accident occurred, but claimed that it was not the medical cause of claimant’s injuries. Employer also contended that claimant’s request for medical expenses was barred under Utah law because he failed to submit any such expenses for payment for over a period of three consecutive years. Employer further contended that claimant did not suffer measurable permanent impairment in the industrial truck accident.
The ALJ found that although claimant treated with Dr. Horne during the three-year period following the submission of his last bill for medical care, the bills for those treatments were never submitted for payment by employer.

OCCUPATIONAL DISEASE CLAIM
Case Type – OD; Occupational disease claim
Case Name – Jack B. Graves vs. U. S. Steel Corporation and/or Employers’ Reinsurance Fund
Case Number – 2003778
Court/Judge – Marlowe
Verdict/Settlement – Order, 4/05
Amount – The ALJ ordered the ERF to pay two-thirds of claimant’s medical expenses resulting from the second heart attack.
Injuries – Claimant suffered an industrially related myocardial infarction (heart attack) which left him permanently incapacitated.
Attorney(s) - Plaintiff(s) – Sandra N. Dredge of Dredge, Lallatin & Melendez, Provo Attorney(s) - Defense – For employer/carrier: Thomas C. Sturdy of Blackburn & Stoll; for ERF: Elliot R. Lawrence
Expert Witness(es) – Because of conflicting testimony, this case was referred to a medical panel.
Facts/Contentions – Prior to the scheduled hearing on this case, the parties entered into a settlement agreement which resolved all the issues disputed among them except for the apportionment of medical expenses between the employer/carrier and the ERF. The parties requested a decision from the ALJ on whether the claimant’s medical expenses should be pro-rated between employer/carrier and the ERF. The ALJ noted in her opinion that the medical panel gave claimant a 30% whole-person impairment rating, with 20% due to a previous industrially related myocardial infarction. The panel thus concluded that the more-recent infarction in this claim added an additional 10% whole-person impairment to claimant’s pre-existing impairment. The ALJ found that claimant’s resulting incapacity as a result of the second industrial injury was substantially greater than if the pre-existing injury had not existed, and the pre-existing industrial injury was responsible for two-thirds of claimant’s disability.
The ALJ noted that Utah law requires contributions from the ERF for medical expenses in cases where an employee with a pre-existing permanent incapacity due to a prior accidental industrial injury incurs another industrial injury that results in permanent incapacity which is substantially greater than it would have been had the previous incapacitating industrial injury not existed. In such cases, the ALJ wrote, the liability for medical expenses in connection with the second injury is assessed on the basis of the percentage of permanent physical impairment attributable to the first injury.

WORK INJURY CLAIM
Case Type –WA; Work-related injury claim
Case Name – Juan Hernandez vs. Smurfit Stone Container Corporation and Insurance Company of the State of Pennsylvania
Case Number – 2003992
Court/Judge – Marlowe
Verdict/Settlement – Order, 4/05
Amount – The ALJ found that claimant became blind in one eye as a result of his industrial injury and was entitled to the statutory permanent partial disability compensation of 100 weeks for this impairment. The ALJ gave credit to employer/carrier for the benefits they had already paid and ordered employer/carrier to pay claimant $13,600.40 in accrued permanent partial disability benefits to cover the remaining obligation for claimant’s blindness in one eye. This amount 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.
Injuries – Claimant suffered a retinal detachment injury to one eye.
Attorney(s) - Plaintiff(s) – Loren M. Lambert of Arrow Legal Services
Attorney(s) - Defense – Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Expert Witness(es) - Plaintiff(s) – Dr. Bernstein
Expert Witness(es) - Defense – Dr. Ramsay
Damages – Employer/carrier paid claimant $21,699.60 in permanent partial disability benefits.
Facts/Contentions – Claimant was injured when a piece of metal hit him in the left eye, causing a retinal detachment.
Employer/carrier admitted that the accident occurred, accepted liability and paid some benefits. However, employer/carrier denied that claimant was entitled to the statutory permanent impairment for blindness. Employer/carrier relied upon the findings of Dr. Ramsay, who noted that claimant was able to see a light in brief flashes during his independent medical examination. However, despite this occasional light perception, Dr. Ramsay wrote in his opinion, “Practically speaking, he has no vision in the left eye.”
Dr. Bernstein, claimant’s treating physician, found claimant had lost all light perception in his left eye.

FALL INJURY CLAIM
Case Type – WA, SF; Work-related slip/fall injury claim
Case Name – Nancy A. Nelson vs. Utah Local Governments Trust and/or Employers Reinsurance Fund
Case Number – 200337
Court/Judge – George
Verdict/Settlement – Order, 4/05
Amount – The ALJ noted that failure to file a pre-trial disclosure in a timely manner may result in the exclusion of defenses. Because of ERF’s failure to present its affirmative statute of limitations defense in a timely, accurate and detailed manner, the ALJ struck this defense. The ALJ also struck the ERF’s defense regarding accrued interest on past due benefits because ERF presented this defense for the first time at the hearing, even later than it presented the statute of limitations defense.
The ALJ ordered ERF to begin making permanent total disability benefit payments to claimant in the amount of $292 on the day after the last payment by employer’s insurance carrier. Accrued amounts are due and payable plus interest, and payments shall continue for the rest of claimant’s life. Employer’s insurance carrier shall continue to be responsible for claimant’s related medical expenses.
Injuries – Claimant suffered herniated nuclei pulposae at C4/5, C5/6 and C6/7. She was given a 27% related whole-person impairment rating for her injuries, and she qualified for Social Security disability benefits.
Attorney(s) - Plaintiff(s) – Aaron J. Prisbrey, St. George
Attorney(s) - Defense – For Workers’ Compensation Fund, which managed this claim for Utah Local Governments Trust: Lori Hansen; for ERF: Lori Lima; then Edwin C. Barnes of Clyde, Snow, Sessions & Swenson
Facts/Contentions – Claimant was injured when she fell on snow and ice in the parking lot of her workplace. She filed a request for permanent total disability benefits, and the undisputed records showed she was off work from the date of her injury until she was fired two years and nine months later.
Employer’s insurance carrier denied liability and asked that the ERF be joined as a party to the claim. Claimant and employer’s carrier informed the ALJ that they had agreed claimant was permanently and totally disabled and settled on benefits to be paid. Because of this statement, the ALJ excused employer’s attorney from the scheduled hearing on the claim.
At the hearing, claimant explained for the record that under the terms of the settlement agreement, employer’s insurer agreed that claimant was permanently and totally disabled beginning on the date when she was fired from her job. Employer’s insurer agreed to pay claimant $292 per week in permanent total disability benefits for six years from that date, plus interest on past due amounts, and fees were deducted from the settlement payment of accrued amounts and paid directly to claimant’s attorney. After six years, employer’s liability for further benefits was to cease, although employer’s insurer agreed that it would continue to pay claimant’s related medical expenses.
A little under a month before the hearing, ERF untimely filed its pre-trial disclosure, in which it contended for the first time that claimant’s request for benefits was untimely because it was filed more than six years after the date of injury. The disclosure also stated that ERF was unaware of any jobs claimant was capable of performing, and ERF reiterated this statement at the hearing.
At the end of the hearing, the ALJ concluded that a preponderance of undisputed evidence indicated that claimant became permanently and totally disabled at the time she was fired two years and nine months after her injury. Because of time constraints, the parties submitted written closing arguments on the issues of ERF’s claims, in which ERF again contended that claimant’s application for benefits was untimely. ERF still did not dispute the occurrence or degree of claimant’s injuries. ERF did not present the statute of limitations defense in its answer to the claim.

WORK INJURY CLAIM Case Type – WA; work-related injury claim
Case Name – Dolores Enriquez vs. Salt Lake School District
Case Number – 2003787
Court/Judge – Eblen; then Sessions
Verdict/Settlement – Order, 4/05
Amount – The ALJ found claimant failed to prove medical and legal causation; the ALJ therefore dismissed this claim with prejudice.
Injuries – Claimant contended that she suffered from bilateral carpal tunnel syndrome, but Dr. Knoebel found no evidence to support this complaint.
Attorney(s) - Plaintiff(s) – Claimant was represented pro se.
Attorney(s) - Defense – Carrie T. Taylor of Richards, Brandt, Miller & Nelson
Expert Witness(es) - Defense – Dr. Richard T. Knoebel–independent medical examination (IME) physician
Damages – Claimant sought medical and temporary total disability benefits.
Facts/Contentions – Claimant stated that she was lifting heavy pans of food to place them in a steam table when she felt something pop in her arms. The ALJ and the IME physician both noted that her complaints were inconsistent, and she had normal grip strength in both hands following the incident.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Joseph Q. Brown vs. Knight Transportation (self-insured)
Case Number – 20040016
Court/Judge – La Jeunesse
Verdict/Settlement – Order, 4/05
Amount – The ALJ found that claimant did not qualify as an employee of Knight under Utah statutes since he was never formally hired and was not paid for attending the orientation and testing sessions. The ALJ therefore found Knight not liable and dismissed this claim with prejudice.
Injuries – Claimant suffered a compression fracture at L1.
Attorney(s) - Plaintiff(s) – Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense – Theodore E. Kanell of Plant, Christensen & Kanell
Facts/Contentions – Claimant applied for a job as a truck driver with Knight and attended a day of orientation classes held for potential new drivers. On the second day, he returned to class, took a drug test and underwent a DOT-required physical exam. On the third day, after attending class, claimant went with some other applicants in a van to Work Steps in Midvale to undergo physical testing. Claimant was asked to lift a milk carton containing various weighs. He lifted the carton when it contained 50 pounds, 75 pounds, and 90 pounds without incident. However, he said, upon lifting the carton when it contained 100 pounds, he felt a snap together with intense pain in the middle of his back. Claimant said he went outside and walked around for a while before finishing his testing at Work Steps. The following day, he returned to Knight to finish his testing there, but could do nothing because of the pain in his back. When a staff member brought in W-2 forms for him to sign, claimant told the staff member about the incident at Work Steps. The staff member told claimant not to sign the W-2 and to come back when he felt better. Knight did not pay claimant for the three days of testing and orientation, and claimant was never formally hired by Knight. However, Knight promised the truck driver applicants at the orientation that they would be paid for the three days of orientation and testing on their first paycheck.
Dr. Moress, Knight’s physician, reviewed claimant’s MRI and notes from his treating physician, Dr. Ritchie. Both physicians concluded that claimant suffered a compression fracture of the L1 vertebra as a result of the lifting incident at Work Steps. The physicians agreed that claimant reached medical stability three months after the lifting incident.
Knight denied liability for claimant’s injury, contending that claimant was not an employee of Knight when he was injured.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Camellia Elder vs. Quality Park Products
Case Number – 20040122
Court/Judge – George; then Sessions
Verdict/Settlement – Order, 4/05
Amount – The ALJ found that claimant proved legal and medical causation. The ALJ ordered Quality Park Products and its insurer American Insurance to pay claimant’s outstanding medical bills and also to pay for all her recommended future treatment. Accrued expenses are due and payable in a lump sum plus interest. Quality Park and American Insurance must also pay an add-on fee of $800 to claimant’s attorney. The ALJ agreed that Cigna/Ace Insurance had discharged its obligation under the terms of the prior settlement agreement; the ALJ therefore granted its motion and dismissed it from the action in this case.
Injuries – Claimant suffered a left hand injury which caused her thumb to stiffen over time.
Attorney(s) - Plaintiff(s) – Aaron J. Prisbrey, St. George
Attorney(s) - Defense – For Quality Park Products and American Insurance: Thomas C. Sturdy of Blackburn & Stoll; for Cigna/Ace Insurance: Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) - Plaintiff(s) – Dr. Green
Expert Witness(es) - Defense – Dr. Knoebel
Damages – Claimant presented $3,043.22 in unpaid medical bills.
Facts/Contentions – In 2003, claimant and employer/carriers reached a settlement agreement in this claim, and an ALJ of the Labor Commission approved the agreement. The agreement established legal and medical causation for claimant’s industrial injury and reserved all issues that might arise after June 23, 2003, including medical issues. After that time, claimant began experiencing increasing stiffness in her thumb, to the point where she found it difficult to tie her shoes or hold a can of soda. She could neither grasp objects nor open her hand fully. Her doctor opined that physical therapy and possible surgery would be required to treat the stiffness, which he felt definitely stemmed from claimant’s industrial injury.
At the time the settlement agreement was signed, employer and insurers relied on Dr. Knoebel’s opinion that no further medical treatment would be needed. The ALJ who heard this subsequent application for further medical benefits wrote in his opinion that he found the more-recent opinion of claimant’s treating physician to be credible.
Cigna/Ace moved to be dismissed from this claim on grounds that it had discharged its full obligation under the terms of the earlier settlement.

PERMANENT TOTAL
DISABILITY CLAIM
Case Type – WA; Work-related injury claim
Case Name – John James vs. Cox Transport
Case Number – 2002664
Court/Judge – Hann; then Sessions
Verdict/Settlement –Order, 4/05
Amount – The ALJ ordered employer and its carrier to pay claimant $433 per week in permanent total disability benefits beginning 4/1/02 and continuing for the rest of claimant’s life. Accrued benefits are due and payable in a lump sum less credit for attorney’s fees previously paid and plus interest. In the event that claimant qualifies for Social Security retirement benefits, these weekly benefits shall reduce his Social Security retirement benefits by 50% as provided by Utah law.
Employer/carrier must also pay claimant’s related medical bills. Within 30 days of the submission of claimant’s unpaid medical bills, the ALJ ordered, employer/carrier must prepare and submit an accounting of all compensation, medical expenses and attorney’s fees paid to date and provide copies to the ALJ, claimant, and claimant’s attorney.
Injuries – Claimant suffered injuries which rendered him permanently and totally disabled.
Attorney(s) - Plaintiff(s) – Aaron J. Prisbrey, St. George
Attorney(s) - Defense – Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Facts/Contentions – This claim was initially heard by ALJ Hann, who issued a tentative finding of permanent and total disability, as Utah law requires in successful permanent total disability claims in order to allow time for employer/carrier to submit a re-training/re-employment plan if desired. Employer and its carrier, American Home Assurance, were ordered to pay claimant accrued subsistence benefits of $52,393 plus interest and ongoing subsistence benefits of $433 per week, as well as all of claimant’s related medical expenses. However, ALJ Sessions noted, though they made one lump sum payment of $45,000 and a second, later payment of $5,100, they failed to continue making the weekly payments mandated by the order and did not pay some of claimant’s related medical bills. The ALJ therefore found that employer and its carrier had committed a crime under the terms of the Utah Code Annotated, Section 34A-2-803.
Employer and its carrier filed a re-employment plan in a timely manner, but the ALJ found they were not entitled to submit the plan because they were in violation of Utah code at the time they submitted the plan. The ALJ therefore disregarded the plan. The ALJ wrote in his opinion that in light of the case history, the ALJ felt employer and its carrier were not likely to be forthcoming with timely payments and were not credible.

THIRD-PARTY CLAIM FOR PAYMENT OF MEDICAL EXPENSES
Case Type – WA, CX; Third-party claim for payment of medical expenses in connection with a work-related injury
Case Name – Cottonwood Hospital; and Ruth Thomas vs. Target
Case Number – 041066
Court/Judge – La Jeunesse
Verdict/Settlement – Order, 4/05
Amount – The ALJ found Target owed Cottonwood Hospital $1,934.32 for medical treatment provided by the hospital to injured worker Thomas. The ALJ ordered Target to pay the hospital.
Injuries – Employee Thomas suffered unspecified injuries.
Attorney(s) - Plaintiff(s) – None listed.
Attorney(s) - Defense – None listed.
Damages – The hospital claimed Target failed to pay $1,934.32 in medical bills for employee Thomas. Facts/Contentions – Cottonwood Hospital contended that Target was liable for payment of medical expenses for employee Thomas, who was injured in an industrial accident.
Target failed to file an answer in this case.

WORK INJURY CLAIM
Case Type – WA, PA, TA; Work-related pedestrian/truck accident injury claim
Case Name – (Name of case withheld)
Case Number – 20040303
Court/Judge – Eblen; then Sessions
Verdict/Settlement – Order, 4/05
Amount – The ALJ found that claimant deviated from his work route and made a side trip to his brother’s house to deliver a letter which was not work-related. The ALJ thus found claimant was not injured in the course and scope of his employment. The ALJ therefore dismissed this claim with prejudice.
Injuries – Claimant suffered multiple serious injuries and was taken directly to the hospital from the scene of the accident.
Attorney(s) - Plaintiff(s) – Timothy C. Allen
Attorney(s) - Defense – Lori Hansen
Facts/Contentions – Claimant drove a delivery truck for employer. He stated that on the day he was injured, he turned off his route and stopped at his brother’s house to use the restroom. He said he did this two or more times every month that he drove that particular delivery route. Claimant said that he had tried the restroom at a convenience store on his route, but it was dirty and he preferred not to go there. There was a Chevron station with a good restroom farther along on his route, but claimant said his urgency was such that he did not want to wait to reach it on that day. While he was at his brother’s home, claimant said, his brother called his attention to the fact that the company truck was moving. Claimant had stopped the truck with the engine running, applied the emergency brake, and left the manual transmission in neutral. Claimant chased after the truck to stop it or steer it away from a nearby cemetery and was injured in the attempt.
Employer/carrier contended that claimant drove out of his way and stopped at his brother’s house not to use his brother’s restroom, but to deliver to his brother a letter concerning some stock information that he wanted to share with his brother. Employer/carrier contended that claimant had the letter in his possession for about a week prior to the accident and told an adjuster from the Workers’ Compensation Fund that he stopped at his brother’s house to deliver it. Claimant’s interview with the adjuster took place shortly after the accident. The adjuster testified at the hearing before ALJ Eblen that claimant made no mention of a comfort stop at the time of his interview with the adjuster. Claimant said he did not recall anything he told the adjuster, presumably because of his injuries.

PERMANENT TOTAL DISABILITY CLAIM RELATED TO WORK INJURIES
Case Type – WA; Claim of permanent and total disability resulting from work injuries
Case Name – Craig Cobb vs. Sorenson Bio Science
Case Number – 2002722, 20021181, 20021182, 97729
Court/Judge – Eblen; then Sessions
Verdict/Settlement – Order, 4/05
Amount – ALJ Sessions issued a tentative finding of permanent and total disability. Under Utah law, this tentative finding must precede a final finding in order to allow employer/carrier time in which to file a re-training/re-employment plan if desired. The ALJ ordered Sorenson to pay claimant $79,248.00 in subsistence benefits to cover a period of 312 weeks at $254 per week; thereafter the weekly compensation amount will adjust to 36% of the State of Utah’s average weekly wage rounded to the nearest whole dollar amount. Accrued amounts are due and payable in a lump sum plus interest and less the maximum attorney’s fee allowed by law, or $10,352, which is to be deducted from this award and paid directly to claimant’s attorney. The matter is to be set for a second-step hearing unless the parties indicate that they are willing to stipulate to the final determination of permanent and total disability.
Injuries – Claimant suffered serious unspecified injuries which cause him to experience difficulties with the activities of daily life, including lifting, carrying, kneeling, crouching, and activities requiring stamina. He is undergoing pain management therapy.
Attorney(s) - Plaintiff(s) – Richard R. Burke of King, Burke & Schaap
Attorney(s) - Defense – For Sorenson: Theodore E. Kanell of Plant, Christensen & Kanell; the other employer and/or insurance carrier involved (Fleming) was represented by Mark D. Dean of Blackburn & Stoll, and the Uninsured Employers’ Fund was represented by Elliot R. Lawrence.
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel. Attorney Kanell objected to the panel’s findings, and a response to the objection was filed by other counsel. ALJ Sessions adopted the panel’s findings over attorney Kanell’s objections. Facts/Contentions – At a hearing before ALJ Eblen, the record established that claimant was injured in three separate industrial accidents several years apart: in August of 1987, December of 1996, and November of 1999. His employers and their insurers disputed his degree of impairment and the amount of that impairment, if any, which should be apportioned to each accident.
The medical panel found that 40% of claimant’s impairment was related to the 1987 accident, which occurred while claimant was working for the Fleming Company; 40% of his impairment was related to the 1996 accident, which occurred while claimant was working for Sorenson; and 20% stemmed from the 1999 accident, which occurred while claimant was working for Sorenson. The panel found the pain management treatment claimant is receiving from Dr. English is reasonable and necessary to treat his industrial injuries. In her report on a vocational assessment of claimant, vocational rehabilitation expert Kristy Farnsworth, PhD found that claimant has difficulty concentrating due to secondary pain issues. Claimant is 43 years old and only completed the ninth grade, although he later obtained a GED. He attempted to complete a vocational rehabilitation training program without marked success because his pain made it difficult for him to concentrate. His skills as an injection machine operator are not transferrable to other jobs given his present physical limitations, and ALJ Sessions found that further re-training efforts would improve his employability but not his ability to sustain the physical performance of full-time work. Claimant is currently unable to work.

FALL
Case Type – WA, SF; Work-related fall
Case Name – Richard D. Grint vs. Argonaut Insurance Company
Case Number – 20040182
Court/Judge – Sessions
Verdict/Settlement – Order, 4/05
Amount – The ALJ wrote in his opinion that previous orders in this case setting forth the amount of compensation claimant should receive were inadequate and unfair to claimant. The ALJ noted that when claimant’s benefits were calculated, a mathematical error was made which should be corrected in this order. The ALJ therefore ordered employer/carrier to pay claimant 312 weeks of permanent partial disability benefits at the statutory maximum of $207 per week for his 44% related whole-person impairment. To rectify the prior mathematical error in calculation, employer/carrier must also pay claimant increased temporary total disability compensation at the statutory maximum rate of $300 per week for the period running from 4/2/02 (the date of his elbow replacement surgery) through 11/20/03 (the date he stabilized at 44% impairment). All accrued benefits are due and payable in a lump sum plus interest. Employer/carrier must continue to pay claimant’s related medical expenses.
Injuries – Claimant suffered a fractured elbow and underwent 39 surgical procedures over a period of 22 years. His related whole-person impairment went from 14% to 44% following the poor outcome of his most recent surgery, a complete elbow replacement.
Attorney(s) - Plaintiff(s) – Claimant was represented pro se.
Attorney(s) - Defense – Michael E. Dyer of Blackburn & Stoll
Facts/Contentions – The ALJ noted in his opinion on this case that it presented some unique issues and an extraordinary history. Claimant was loading a flat-bed truck with timber when he pulled upward on a tie-down strap which snapped under the pressure. Claimant fell backward five or six feet from the truck bed and landed on the ground hand first, breaking his elbow. His employer has paid over $300,000 in medical benefits to date, and indicated at the hearing on his claim that they intend to continue to pay related medical expenses. The dispute centered over whether claimant’s whole-person impairment had worsened since his unsuccessful elbow replacement, and if so, how much.
The medical record showed claimant took a conservative approach to his treatment and attempted to put off the elbow replacement until he had no choice, since he was told that he would probably only get one chance at a replacement during his lifetime. The ALJ wrote that it is unfortuna