Industrial Reports

2006

FALL-RELATED INJURY CLAIM
Case Type – WA, SF; Work-related fall injury claim
Case Name – Jaime Miranda vs. Standard Drywall; and National Union Fire Insurance Agency of Pittsburgh
Case Number – 2003899
Court/Judge – Marlowe
Verdict /Settlement – Order, 01/06
Amount – Despite employer’s claims that all the nail cartridges were cleaned up when the metal framing was completed, the ALJ found the physical evidence of the surgery more persuasive than employer’s claim. The ALJ therefore found that when claimant fell, he landed on a stray nail cartridge, which discharged and lodged in his neck. The ALJ adopted the medical panel’s report and ruled that claimant’s ongoing symptoms are related to his industrial injury. The ALJ therefore ordered employer/carrier to pay claimant temporary total disability compensation of $471.20 per week, starting on the date when he was injured and continuing until the date when he reaches maximum medical improvement. The accrued portion of these benefits is due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses, including those for the future treatment recommended by the medical panel. The ALJ dismissed the claim for permanent partial disability benefits as unripe for adjudication, since claimant cannot be awarded a permanent partial impairment rating until he stabilizes medically.
Injuries – At the hospital, claimant underwent surgery to remove a piece of metal from his neck. It was later identified as a small nail-gun cartridge shell. Claimant and his treating physicians contended that the accident left claimant with ongoing weakness, numbness and reflex loss in his face and upper left extremities.
Attorney(s) - Plaintiff – Maximo R. Guerra
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 Dr. Joseph Q. Jarvis–occupational medicine specialist and chair; and Dr. Elena Jones-Hewett–neurologist.
Facts/Contentions – Claimant was working on employer’s job-site in Montana, putting plywood over roof trusses in hundred-degree heat. He was wearing a hard hat and a full tool belt. He was standing on a board fixed to the roof incline about 10 or 15 feet above another section of the roof when the board broke. Still standing, claimant slid down the roof incline, tripped over another board at the bottom, turned and fell about five feet onto some metal sheeting covering a flat lower section of roof. He landed with his head and torso on the lower roof and his legs still on the inclined part. Claimant and a co-worker both stated that they heard a loud crack as claimant landed. Claimant said that after he landed, he saw a lot of blood but could not figure out where it was coming from. Co-workers lowered claimant from the roof with a forklift while another worker ran to get claimant’s supervisor. The supervisor drove claimant to the nearest hospital emergency room, where claimant was unable to make hospital personnel understand what had happened to him because he speaks very little English and they did not speak Spanish.
Employer/carrier admitted that the incident occurred, but disputed that claimant was in the course and scope of his employment when he was injured because, they contended, claimant was engaged in horseplay with co-workers at the time of the accident. Through an interpreter, claimant denied this allegation at the hearing on his claim.
Employer/carrier stated that the type of nail-gun cartridge which was removed from claimant’s neck is commonly used in metal framing. Employer/carrier contended that the metal framing on the job where the accident occurred had already been completed, and workers had cleaned up the area afterward and removed all of the nail-gun cartridges, so that there were no cartridges lying around.
The medical panel examined claimant, reviewed his records and concluded that there was a medical causal relationship between his industrial injury and his ongoing symptoms. The panel found that claimant is not yet medically stable and should undergo further physical therapy and treatment at a pain clinic for his regional pain syndrome.

FALL-RELATED INJURY CLAIM
Case Type – WA, SF, PD; Work-related fall injury, permanent total disability claim
Case Name – Earl R. Munson vs. Utility Trailer Sales of Utah, Incorporated; and Workers’ Compensation Fund
Case Number – 041025
Court/Judge – Marlowe
Verdict /Settlement – Order, 01/06
Amount – The ALJ declined to refer this case to a medical panel because she felt that even if the panel found that a causal link existed between claimant’s industrial fall and his pelvic condition, claimant still could not show all of the remaining elements required to prove permanent total disability. The ALJ ruled that claimant failed to prove that his inability to work stemmed from his hip/pelvic injury and therefore failed to prove he was permanently and totally disabled as a result of his work injury. The ALJ therefore dismissed this claim with prejudice.
Injuries – Claimant suffered hip injuries and a pelvic fracture with a non-union which required surgical intervention.
Attorney(s) - Plaintiff – Claimant was represented pro se.
Attorney(s) - Defense – Hans M Scheffler
Expert Witness(es) - Plaintiff – Dr. David Horwitz–treating physician
Expert Witness(es) - Defense – Dr. Stephen Marble–independent medical examination (IME) physician Damages – Employer/carrier paid claimant seven months’ temporary total disability benefits and also paid him $5,000 against an anticipated permanent partial impairment rating. Claimant’s own treating physician did not award him a permanent partial impairment rating, and the IME physician felt claimant suffered no permanent partial impairment from his industrial fall
Facts/Contentions – Claimant was working on a compressor when his pry-bar slipped and hit him in the head, causing him to fall. When he fell, he landed on his hip. Claimant contended that this industrial accident caused him to become permanently and totally disabled.
Employer/carrier admitted that the accident occurred, but disputed the claim of permanent and total disability, contending that claimant was disabled by other, non-industrial causes. Claimant had extensive pre-existing health problems at the time of this accident. He fell again in his garage at home one or two months after this accident. Claimant admitted that after the garage fall, he experienced a significant increase in the pain in his pelvis.

FALL-RELATED INJURY CLAIM
Case Type – WA, SF; Work-related fall injury claim
Case Name – Celine Greene vs. Convergys; and Lumbermen’s Mutual Insurance Company/Kemper Insurance
Case Number – 050067
Court/Judge – Marlowe
Verdict /Settlement – Order, 01/06
Amount – The ALJ found claimant failed to prove that she was entitled to the temporary total or temporary partial disability benefits she sought. The ALJ therefore dismissed these claims with prejudice. The AlJ ordered employer/carrier to pay claimant’s related medical expenses.
Injuries – Claimant suffered an anterior compartment medial meniscus tear, which was surgically repaired and debrided.
Attorney(s) - Plaintiff – Michael Gary Belnap, Ogden
Attorney(s) - Defense – Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) - Defense – Dr. Scott Knorpp–independent medical examination (IME) physician
Facts/Contentions – Claimant injured her knee when she slipped and fell on an icy overpass on employer’s property on her way into the building where she worked. She struck her knee on a speed bump when she fell. Three and a half years later, claimant was going down some stairs in her home when her knee popped and she fell the last few steps. She was diagnosed with a possible foot fracture as a result of this second fall.
Employer/carrier admitted that the accident occurred and paid some benefits, but disputed claimant’s contention that she was entitled to additional temporary total and temporary partial disability benefits.
Employer/carrier relied on Dr. Knorpp’s findings.
Dr. Knorpp found a medical causal connection between claimant’s knee injury and her industrial fall, but he also found that she reached maximum medical improvement six months after the accident.
Claimant sought additional benefits for time she took off work to attend doctors’ appointments, but employer’s work records did not show she missed any work during the time when she claimed she had the appointments.

FALL-RELATED INJURY CLAIM
Case Type – WA, SF; Work-related fall injury claim
Case Name – Barbara E. Barnes vs. Weber Basin Water Conservancy District and/or Workers’ Compensation Fund
Case Number – 040933
Court/Judge – Marlowe
Verdict /Settlement – Order, 01/06
Amount – The ALJ adopted the medical panel’s report and found claimant failed to prove medical causation. The ALJ therefore dismissed this claim with prejudice.
Injuries – Claimant suffered a low back injury as well as an injury to her neck which caused pain to radiate into her shoulder and left arm. She suffered injuries to her forehead and knee which resolved without incident some time after the accident.
Attorney(s) - Plaintiff – Timothy C. Allen
Attorney(s) - Defense – Lori Hansen
Expert Witness(es) – By stipulation, the parties waived a hearing and referred this case directly to a medical panel chaired by Dr. Joseph Q. Jarvis–occupational medicine specialist.
Facts/Contentions – Claimant slipped and fell down some stairs at work. She claimed she experienced ongoing low back pain as a result of her industrial accident.
Employer/carrier admitted that the accident occurred, but disputed the contention that it caused claimant’s continuing low back symptoms.
The medical panel examined claimant and reviewed her records. The panel found no medical causal relationship between claimant’s industrial fall and her continuing low back symptoms. The panel found that the all of injuries claimant suffered in the industrial fall resolved within two weeks of the accident.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Laird Roberts vs. Silver Lakes Films; and Workers’ Compensation Fund
Case Number – 2003367
Court/Judge – Marlowe
Verdict /Settlement – Order, 01/06
Amount – The ALJ adopted the medical panel’s report and ruled that since claimant has already received temporary total disability benefits foir the period extending through the date when the panel found he reached maximum medical improvement, and since claimant has also been paid for his 3 % related whole-person impairment, claimant is not entitled to any further workers’ compensation benefits. The ALJ therefore dismissed the claims for further benefits with prejudice.
Injuries – Claimant suffered unspecified injuries.
Attorney(s) - Plaintiff – John F. Fay of Gregory, Barton & Swapp; then of Gregory Swapp
Attorney(s) - Defense – Elliot K. Morris
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Joseph Q. Jarvis–chair and occupational medicine specialist; and Dr. Joel Dall–physiatrist. Damages – Claimant sought additional temporary total and permanent partial disability benefits.
Facts/Contentions – Claimant was injured on 02/16/01. He claimed that he did not reach maximum medical improvement from his injuries until several years after he was injured. He further claimed that the accident left him with a substantial whole-person permanent impairment.
Employer/carrier accepted liability for the accident and paid some benefits, but disputed the extent of claimant’s injuries and the date on which he reached maximum medical improvement. Employer/carrier contended that they had already paid claimant all of the workers’ compensation benefits to which he was entitled.
The medical panel examined claimant, reviewed his records and found that he reached maximum medical stability one year and two weeks after he was injured. The panel awarded claimant a 3 % industrially related whole-person impairment rating.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Ronald C. Stewart vs. ATA Services; and ADP Total Source
Case Number – 050214
Court/Judge – Marlowe
Verdict /Settlement – Order, 01/06
Amount – The ALJ found that claimant wrapped his arm around the kiosk as it started to fall and used his arm and whole body force to keep it from falling further. This exertion, she ruled, exceeded anything a person might encounter in everyday life and thus met the Allen test (see below). The ALJ therefore found claimant was injured in an industrial accident. The ALJ ordered employer/carrier to pay claimant $4,093.32 in accrued temporary total disability compensation for the time he was unable to work following his surgery. 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. Since claimant’s injury resolved completely, the ALJ dismissed the claims for recommended medical care and permanent partial disability benefits with prejudice. However, the ALJ ordered employer/carrier to pay claimant’s medical expenses, including the outstanding medical bills, for treatment of his industrial injury. Medical benefits are due and payable in a lump sum plus interest and less attorney’s fees as noted above.
Injuries – Claimant suffered a rotator cuff tear which required surgical repair and physical therapy.
Attorney(s) - Plaintiff – Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense – Christian S. Collins of Kirton & McConkie
Expert Witness(es) - Plaintiff – Dr. Jackson–treating physician
Expert Witness(es) - Defense – Dr. Devon Nelson–treating physician for prior injury
Damages – Claimant sought medical expenses, benefits for recommended medical care, temporary total disability benefits and permanent partial disability benefits. Claimant and his wife paid some of the costs of his surgery, and about $6,000 in medical bills remained unpaid at the time of the hearing.
Facts/Contentions – Claimant was preparing to install a kiosk at a post office in Akron, Ohio for employer. He unloaded the kiosk from the truck and stood it upright against the truck while he got ready to place it on a dolly, but the pavement was not level, and the kiosk began to fall toward claimant. Claimant reached around it to keep it from falling with his right arm extended at about shoulder height. As he did this the kiosk fell onto his hand and arm, and he felt something give in his right shoulder.
The rectangular kiosk was six or seven feet tall and about 40 inches wide. It weighed between 70 and 100 pounds. The kiosk weighed more at the top than it did at the bottom because the bottom was hollow to allow for the addition of other components. The kiosk had fallen about a foot when claimant caught it.
Claimant finished the job in Ohio and continued to work even though he was in pain, hoping the injury would get better on its own. After he did a local job for employer there was no more work available for him. He never lost any time from work as a result of this injury. About three weeks after he was injured, he told a supervisor that he had hurt his shoulder at work and needed to see a doctor. He reported at the hearing on his claim that following his surgery and physical therapy, his shoulder injury was 100 % resolved and he recovered full use of his arm. Dr. Jackson concluded that the incident with the kiosk seriously aggravated claimant’s pre-existing shoulder condition.
Employer/carrier contended that the medical record showed claimant had two prior shoulder surgeries for rotator cuff injuries. They argued that the incident with the kiosk temporarily and/or mildly aggravated claimant’s pre-existing shoulder condition, but did not satisfy the Allen test. Employer/carrier argued that claimant merely steadied the kiosk with his arm as it started to fall.
Utah case law (Allen v. Industrial Commission) states that a previously injured employee who seeks benefits for a work-related re-injury or aggravation of the pre-existing injury or condition must prove that the work activities leading up to the re-injury or aggravation exceeded those a person might encounter in everyday life, such as lifting a toddler or taking a full garbage can out to the curb.
Claimant was not given an impairment rating for his previous shoulder injuries, which apparently resolved completely.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Jay Brewster vs. Home Depot (self-insured)
Case Number – 20040105
Court/Judge – Marlowe
Verdict /Settlement – Order, 01/06
Amount – The ALJ adopted the medical panel’s report and found that claimant’s re-injury satisfied the Allen test (see below). The ALJ ordered self-insured employer to pay claimant’s medical expenses related to the aggravation of his pre-existing injury. These benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. The ALJ did not make an award of future medical expenses because no specific treatment was recommended, but she did not dismiss the claim for recommended medical care with prejudice, which means that claimant is free to re-submit the claim if additional medical care is prescribed in the future.
Injuries – Claimant suffered an abrupt and intense aggravation of a pre-existing hernia.
Attorney(s) - Plaintiff – Phillip B. Shell of Day, Shell & Liljenquist
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 Dr. Craig C. Wilkinson.
Damages – Claimant sought medical expenses. He originally also sought temporary total disability compensation, but withdrew this claim at the hearing on his case.
Facts/Contentions – Claimant contended that an incident at work caused a sudden and abrupt worsening of his pre-existing incisional hernia, which resulted from prior non-industrially related surgeries.
Employer/carrier contended that the incident at work failed to satisfy the Allen test.
Utah case law (Allen v. Industrial Commission) states that a previously injured employee who seeks benefits for a work-related re-injury or aggravation of the pre-existing injury or condition must prove that the work activities leading up to the re-injury or aggravation exceeded those a person might encounter in everyday life, such as lifting a toddler or taking a full garbage can out to the curb.
The medical panel examined claimant, reviewed the medical records and concluded that claimant’s work activities caused a sudden and abrupt worsening of his pre-existing hernia, which stabilized medically three months after it occurred. The panel felt claimant may need future physical therapy and careful pain medication to treat the industrial aggravation of his hernia symptoms. The panel did not believe additional surgery would be helpful.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Patricia R. Moon vs. Sees Candies; and American Protection Insurance
Case Number – 20040050
Court/Judge – Marlowe
Verdict /Settlement – Order, 01/06
Amount – The ALJ adopted the medical panel’s report and found that claimant was injured in an industrial accident, and this injury satisfied the Allen test (see below). The ALJ ordered employer/carrier to pay claimant $9,421.94 in accrued temporary total disability compensation for the time she was unable to work following her industrial injury. Since claimant met her burden of proof with respect to medical causation, the ALJ ruled that all of her whole-person impairment was industrially related. The ALJ ordered employer/carrier to pay claimant $11,824.80 in accrued permanent partial disability benefits for her 10% industrially related whole-person impairment. Employer/carrier must also pay all of claimant’s related medical expenses, plus travel expenses for claimant’s travel to seek medical care. All of the accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney.
Injuries – Claimant suffered a spinal injury. Both her treating physician and employer’s independent medical evaluation (IME) physician agreed that claimant has a 10% whole-person impairment; however, the two physicians disagreed as to how much of the impairment was industrially related. Claimant’s treating physician felt that all of her impairment was industrially related, while the IME physician felt it was all non-industrial. Attorney(s) - Plaintiff – Kevin K. Robson of Bertch Robson
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 composed of Dr. Alvin J. Wirthlin–chair; and Dr. Glenn L. Momberger.
Damages – Claimant sought medical expenses, temporary total disability benefits, permanent partial disability benefits and travel expenses.
Facts/Contentions – Claimant contended that her activities at work caused her spinal injury.
Employer/carrier argued that claimant suffered from a pre-existing spinal condition, and this injury did not satisfy the Allen test.
Utah case law (Allen v. Industrial Commission) states that a previously injured employee who seeks benefits for a work-related re-injury or aggravation of the pre-existing injury or condition must prove that the work activities leading up to the re-injury or aggravation exceeded those a person might encounter in everyday life, such as lifting a toddler or taking a full garbage can out to the curb.
The medical panel examined claimant, reviewed the medical records and concluded that claimant’s spinal injury was medically causally related to her industrial accident.

FALL INJURY CLAIM
Case Type – SF; Fall-related injury claim
Case Name – Asa J. Kinney vs. SOS Staffing and/or ACE Insurance
Case Number – 050085
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 01/06
Amount – The ALJ adopted the medical panel’s report and ruled that claimant’s symptoms are not medically causally related to his industrial accident. The ALJ ruled that claimant has stabilized from his industrial injury, and no further medical treatment, including surgery, is necessary. The ALJ dismissed the claim for additional benefits for the period following the date on which claimant stabilized medically, but ordered employer/carrier to pay all of claimant’s related medical expenses incurred before that date.
Injuries – Claimant suffered a neck and shoulder injury. His treating physician gave him a 9% whole-person impairment rating, with 6% of the rating given for the shoulder injury and the other 3% for the neck injury. Cervical spinal surgery is recommended.
Attorney(s) - Plaintiff – Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense – Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Expert Witness(es) – Because of conflicting medical testimony, the parties agreed to waive a hearing and submit the stipulated facts of the case directly to a medical panel chaired by Dr. James Wilcox–internal medicine specialist.
Damages – Claimant sought medical expenses, benefits for recommended medical care, and temporary total disability benefits.
Facts/Contentions – Claimant was injured while shoveling snow for his employer, when he slipped and fell backwards, hitting his neck on the curb behind him. He lost consciousness briefly. He has not been able to work steadily since the accident. He worked periodically in a supervisory capacity on a farm, for which he was paid less than $1,000 in total wages over a two-month period.
Employer/carrier contended that claimant’s symptoms stemmed from degenerative spinal disc disease with protrusions at C5/6, which caused nerve impingement.
The medical panel reviewed the stipulation submitted by the parties and concluded that there was no direct medical causal relationship between claimant’s symptoms and his industrial injury. The panel felt claimant stabilized medically four months after his industrial accident, and no further medical treatment for the industrial injury was necessary after that time.

REPETITIVE MOTION
INJURY CLAIM
Case Type – WA, SI; Work-related repetitive motion injury claim
Case Name – James Hall vs. Consolidated Freightways; and/or Fidelity Guaranty Insurance
Case Number – 200231
Court/Judge – George
Verdict /Settlement – Supplemental order, 01/06
Amount – The ALJ noted that claimant was familiar with the workers’ compensation system and knew he might receive an additional $15,000 (approximate) in weekly benefits if he could prove he was never offered light-duty work. The ALJ further concluded that claimant’s testimony was self-serving and was not supported by any other witnesses or documentation, while employer presented testimony from two witnesses who had no reason to be biased because they no longer worked for the company. These considerations, the ALJ wrote in his opinion, made claimant’s testimony less credible than employer’s. The ALJ found claimant did not present any evidence to prove that he made employer aware of his light-duty work restrictions or requested light-duty work from employer following his lay-off. The ALJ therefore dismissed with prejudice the claim for temporary total disability benefits covering the period when claimant was released to light-duty work following the lay-off. However, the ALJ gave claimant “the benefit of the doubt” for the period during which he was laid off from work entirely, and ordered employer/carrier to pay claimant $4,036 in accrued temporary total disability benefits to cover this time period, with credit allowed for benefits already paid. Accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney.
Injuries – Claimant was diagnosed by various treating physicians with right arm overuse, bilateral early overuse of the wrists, mild bilateral median neuritis with right periscapular myofascial-type symptoms, chronic trapezius strain and thoracic outlet syndrome with right periscapular myofascial pain.
Attorney(s) - Plaintiff – Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense – Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) - Plaintiff – Jeffrey Scott, MD; Mark Greenwood, MD; Davis Petron, MD; Todd Hall, PT–treating health care providers
Expert Witness(es) - Defense – Jeffrey Chung, MD–independent medical evaluation (IME) physician
Facts/Contentions – The parties originally agreed to waive their rights to a hearing and submit the stipulated facts to a medical panel. The panel returned its findings and an order was issued. However, the order did not deal with the issue of whether light-duty work was offered or available to claimant, and thus whether he was entitled to temporary total disability benefits. The ALJ scheduled a hearing on this issue.
The first order reflected the ALJ’s finding that claimant originally noticed periodic pain and numbness in his right arm while working as a long-haul truck driver for employer. He underwent physical therapy, but the pain and numbness continued and worsened. Claimant, who is a weight-lifter, reported that he lost eight inches of muscle mass in his arms as his weakness and numbness continued. Over the course of his treatment, claimant’s symptoms did finally improve, though he did not experience a full resolution.
Claimant had worked at a photo lab years before and was treated for carpal tunnel syndrome at that time, but he could not recall any details about that treatment.
The employment record indicated that claimant received supplemental benefits of $150 per week after he was laid off work by his employer. Three months later, employer sent claimant a letter notifying him that he was recalled to work and telling him that if he failed to respond to the letter, he would lose all seniority rights.
At the hearing on his petition for benefits, claimant contended that he should receive temporary total disability benefits for the time during which he was released to light-duty work, since his employer did not offer him any light-duty work and he was not yet recovered enough to do full-duty work.
Employer/carrier argued that claimant should not receive temporary total disability benefits for the period in question, since light-duty work was available to claimant.
At the hearing, claimant said he discussed the recall letter with his immediate supervisor at work. However, claimant added, the company never offered him light-duty work because the company claimed his medical problems were not industrially related. Claimant said he was aware that other workers at the company were given light-duty work on occasion.
At the hearing, employer presented testimony from two witnesses who no longer work for the company: a then-supervisor and a then-regional operations manager. (The company has gone out of business.) Both witnesses testified that light-duty work was available to workers who made the company aware that they had medical restrictions which made light-duty work appropriate. However, both employees stated that claimant never asked them for light-duty work or told them he had been given medical restrictions by his physician. Both witnesses testified that claimant simply never returned to work after he was laid off.

FALL INJURY CLAIM
Case Type – SF; Fall-related injury claim
Case Name – Mark Leavitt vs. Southern Utah University; and Workers’ Compensation Fund
Case Number – 040952
Court/Judge – Eblen; then Marlowe
Verdict /Settlement – Order, 01/06
Amount – The ALJ ruled that since the medical record documented claimant’s complaints of low back and neck pain immediately after his industrial fall, and since his physicians examined him fully at that time, the issues related to his neck pain were available then and should have been brought up during the previous adjudication. The ALJ therefore ruled that all of the issues in this case had been previously adjudicated in full before ALJ Eblen. The ALJ dismissed this claim under the doctrine of res judicata (a dispute previously decided).
Injuries – Claimant suffered neck pain, mid-back pain and upper back pain.
Attorney(s) - Plaintiff – Claimant was represented pro se.
Attorney(s) - Defense – Stephen H. Urquhart of Thompson Awerkamp & Urquhart, St. George
Expert Witness(es) - Plaintiff – Dr. Greg Scott; Brookanne Mickelsen
Expert Witness(es) - Defense – Dr. Bromley, Dr. Knoebel–independent medical evaluation (IME) physicians
Damages – Claimant sought medical expenses, travel expenses and benefits for recommended medical care.
Facts/Contentions – Claimant was injured when he slipped and fell on ice in the course and scope of his employment. He filed a claim for benefits with the Labor Commission, and ALJ Eblen issued an order on his claim in which she found that all of his symptoms stemmed from a previous non-industrial injury and no medical care was necessary to treat his industrial injury. However, claimant then filed this claim, arguing that he developed neck pain separately from his other injuries as a result of his industrial fall.
Employer/carrier contended that the medical record showed claimant’s treating physicians were aware of his neck pain and included it in terms of medical causation with his other non-industrial, pre-existing injuries. An MRI performed after the non-industrial injury and before the industrial injury showed a mild disc bulge at C5/6, which his doctors concluded was of marginal clinical significance and did not objectify his complaints of neck pain. An MRI performed after the industrial injury, and after ALJ issued her findings and order on the claim, showed marked degenerative changes, with subluxation at all levels, disc bulges at C3/4, C4/5, C5/6, and C6/7 and severe spinal stenosis. The medical record indicated that none of these changes were caused by the industrial fall. The ALJ noted that all three physicians examined claimant’s neck following the industrial accident, but none of them recorded any findings concerning industrially related problems with it.
Claimant argued that because he did not become aware of his neck condition until after the second MRI was performed, he could not have brought up the claim regarding his neck problems during the first adjudication.

ORDER ON MOTION
FOR REVIEW
Case Type –WA; Work-related injury claim
Case Name – Richard D. Grint vs. Trimco Molding; and Argonaut Insurance Company
Case Number – 040182
Court/Judge – This order was issued by Labor Commissioner R. Lee Ellertson.
Verdict /Settlement – Order, 01/06
Amount – The Commissioner ruled that according to Utah case law, an adjudicator may not decide issues not presented for adjudication by the parties in a case. The Commissioner therefore determined that the ALJ should not have awarded temporary total disability benefits or increased claimant’s compensation rate, since those issues were not submitted for adjudication to the Labor Commission by the parties.
Regarding the issue of additional permanent partial disability benefits reflecting claimant’s increased whole-person industrially related impairment, the Commissioner determined that the law which was in force and which governed work-related injuries at the time claimant was injured was the law that should continue to govern his claim. Under that law, in order to qualify for benefits, an injured worker was required to file an application for such benefits no more than eight years after the date of the original injury. Since claimant did not file an application for increased permanent partial disability benefits until nearly 21 years after the date of his original injury, the Commissioner concluded, his claim for these benefits was “unfortunately” barred by law.
Claimant argued that the Workers’ Compensation Act allows an ALJ to award compensation “a reasonable time period beyond 12 years from the date of the accident.” However, the Commissioner noted in his opinion, the authority granted by this section of the law only applies if: 1) a Commission-approved rehabilitation plan is in place but the results of the plan are not yet known; or 2) litigation is ongoing at the Commission. The Commissioner concluded that this case did not satisfy either of these conditions, and therefore, even if this section of the Act could be applied retroactively to the claim, this part of the law would not apply. The Commissioner upheld the ALJ’s award of medical expenses.
Injuries – Claimant suffered left elbow injuries. He was awarded a 14% related whole-person impairment rating two years after his industrial accident, but after 20 years, as his condition worsened and he underwent repeated surgeries, his whole-person industrially related impairment rating was eventually increased to 14%. Attorney(s) - Plaintiff – Richard R. Burke of King, Burke & Schaap
Attorney(s) - Defense – Michael E. Dyer of Blackburn & Stoll
Facts/Contentions – Claimant injured his left elbow in 1983, while working for employer as a young man. Over the years, his condition worsened, he underwent repeated surgeries and his degree of impairment increased. He filed this claim, seeking medical benefits and permanent partial disability benefits, approximately 21 years after the original injury.
The ALJ who conducted the hearing on the claim awarded temporary total disability benefits at an increased rate, permanent partial disability benefits at an increased rate reflecting claimant’s increased impairment, and medical benefits.
Employer/carrier objected to the ALJ’s decision and filed a motion for review, contending that the ALJ adjudicated issues not raised by the parties and that benefits should not have been awarded or increased so long after the original injury. Employer/carrier did not contest claimant’s entitlement to medical benefits.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Jesse Leavitt vs. Lamont Nielsen, Carma Nielsen, Keith Pearson and Morgan Nielsen dba Oak Tree Mill and Construction (uninsured); and/or the Uninsured Employers’ Fund (UEF)
Case Number – 041186
Court/Judge – George
Verdict /Settlement – Order, 01/06
Amount – The ALJ found that claimant was injured in an industrial accident. The ALJ ordered employer(s) to pay all of claimant’s related medical expenses for his industrial injury. However, if employer(s) cannot be located and do not pay these medical expenses within 30 days of the date of this order, the ALJ ordered the UEF to pay these medical expenses. The ALJ ruled that the UEF has full rights of subrogation against employer(s) regarding any money it pays to claimant. The UEF may collect reimbursement in full from employer(s) for any expenses it pays to claimant, plus a 15% penalty for employer(s)’ failure to maintain workers’ compensation insurance coverage on its workers.
Under Utah law, an injured worker does not qualify for temporary total disability benefits until he or she has missed more than three days of work as a result of an industrial injury. Since claimant only missed three days of work following his industrial injury, the ALJ dismissed the claim for temporary total disability benefits with prejudice.
Injuries – Claimant suffered an injury to his right thumb. The injury resolved completely, and no further treatment is anticipated.
Attorney(s) - Plaintiff – Claimant was not present at the hearing on his claim.
Attorney(s) - Defense – Employers Nielsen/Pearson/Oak Tree were not present at the hearing on this claim. UEF was represented by Elliot R. Lawrence.
Damages – Claimant sought medical expenses and permanent total disability benefits for the time he was off work following his industrial injury.
Facts/Contentions – Claimant cut his right thumb while using a table saw. The injury required stitches, and claimant was off work for three days following the industrial accident. Claimant did not receive any further medical treatment after the stitches were removed.
Uninsured employer(s) did not answer or appear at the hearing on this claim. Records submitted at the hearing indicated that Oak Tree had been involuntarily dissolved. None of the parties associated with Oak Tree could be located to be served with notice of the scheduled hearing on this claim.
The UEF initially denied liability, but in its pre-trial disclosure form, the UEF admitted that claimant was injured in the course and scope of his employment.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Walter Jara vs. Intercontinental Hotel/Holiday Inn; and/or Pacific Employers Insurance Company
Case Number – 050077
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 01/06
Amount – The ALJ adopted the medical panel’s findings and concluded that claimant failed to meet his burden of proof with respect to medical causation. The ALJ therefore dismissed this claim for additional benefits with prejudice.
Injuries – Claimant suffered left eye injuries and underwent surgery to remove a pterygium which developed as a result of his industrial accident. He claimed the industrial accident also left him with diplopia (double vision; causation disputed). Claimant’s treating physician rated claimant’s whole-person impairment at between 10% and 20%, with approximately 80% of his total impairment due to Graves disease (a thyroid disease which causes enlarged eye muscles, among other symptoms).
Attorney(s) - Plaintiff – Richard R. Burke of King, Burke & Schaap
Attorney(s) - Defense – Thomas C. Sturdy of Blackburn & Stoll
Expert Witness(es) - Plaintiff – Because of conflicting medical testimony, the parties agreed to waive a hearing on this claim, and the disputed issues were referred directly to a medical panel consisting of Dr. Joseph Q. Jarvis–occupational medical specialist and chair; and Dr. Gregory Brinton–ophthalmologist.
Damages – Claimant sought medical benefits, benefits for recommended medical care, temporary total disability benefits and permanent partial disability benefits. Employer/carrier had already paid claimant $1,121.63 in medical benefits and $76.05 in temporary total disability benefits by the date of the hearing on this claim.
Facts/Contentions – Claimant, who worked in the kitchen at the Holiday Inn in Salt Lake City, was injured when hot oil splashed into his eye.
Employer/carrier accepted liability for the injury and paid some benefits. However, employer/carrier disputed claimant’s contention that his eye injury caused his diplopia (double vision).
The medical panel reviewed the stipulated facts, examined claimant and reviewed the medical record. The panel found that claimant has very little conjunctival scarring and no scarring over the area of the medial rectus muscle as a result of his industrial injury. The panel therefore concluded that claimant’s diplopia is not causally related to his industrial injury.

FALL INJURY CLAIM
Case Type – WA, SF; Work-related trip/fall injury claim
Case Name – Katherine Ranell Moncur vs. University of Utah Hospital; and/or Workers’ Compensation Fund
Case Number – 040496
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 01/06
Amount – The ALJ adopted the medical panel’s report and concluded that claimant’s industrial accident caused her need for a total left knee arthroplasty (replacement). The ALJ therefore ordered employer/carrier to pay claimant’s medical expenses related to this surgery and an add-on statutory attorney’s fee, which is to be paid directly to claimant’s attorney.
Injuries – Claimant suffered knee injuries and underwent a total right knee arthroplasty (replacement) and a left knee arthroscopic partial subtotal medial meniscectomy with repair of a large radial tear in the medial meniscus and repair of a tear in the lateral meniscus posterior horn. At that time her physician also found mucoid degeneration of the medial and lateral menisci and condylar defects on the medial femoral condyle, lateral femoral condyle and patellofemoral joint, demonstrating advanced arthritis change. Claimant later underwent a total left knee arthroplasty.
Attorney(s) - Plaintiff – Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense – Floyd Holm
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Alvin Wirthlin–neurologist and chair; and Dr. Glenn Momberger.
Damages – Claimant sought medical benefits, temporary total disability benefits and permanent partial disability benefits.
Facts/Contentions – The parties agreed that claimant was injured at work when she put down the phone after a call, turned around, tripped over a box, twisted sideways on her left knee and fell against a refrigerator. She experienced immediate sharp pain in her left knee and eventually sought medical treatment after enduring the pain as long as she could. However, the parties disagreed over the cause of claimant’s left knee problems. Claimant contended that they were all caused by the industrial accident, while employer/carrier argued that most of claimant’s left knee symptoms were caused by pre-existing osteoarthritis (a type of degenerative arthritis) which was temporarily aggravated by the industrial accident. Because the causation of the left knee injury was disputed, the parties could not decide who should pay claimant’s medical bills for her left knee arthroplasty (total replacement).
An MRI taken approximately one year after the industrial accident revealed a horizontal oblique undersurface tear of the collateral mid-body of the medial meniscus near the free edge; mucoid degeneration of the posterior horns of the medial and lateral menisci; chronic Type II partial tear and laxity of the ACL; Grade III latero-chondromalacia patella (erosion of the cartilage); Grade II chondromalacia with small joint effusion and Baker’s cyst; and mild tricomponent osteoarthritis.
The medical panel reviewed the medical record and the radiology films and concluded that claimant’s industrial accident caused a permanent aggravation of her pre-existing left knee degenerative arthritis which necessitated the total left knee arthroplasty.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Duane J. Morrow vs. Big O Tires; and/or American Home Assurance (AIG)
Case Number – 050595
Court/Judge – Marlowe
Verdict /Settlement – Order, 01/06
Amount – The ALJ ruled that since employer/carrier conceded causation, claimant is entitled to benefits for his industrial injury. The ALJ ordered employer/carrier to pay claimant an additional $3,383.55 in accrued temporary total disability benefits, over and above the benefits already paid, to cover the additional time claimant was off work until his physician released him to full duty. 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. Attorney;s fees are to include 20% of the interest awarded.
Since claimant’s treating physician did not rate his whole-person impairment, the ALJ found that the only impairment rating in the claim was the IME physician’s finding of no permanent impairment. The ALJ therefore ruled that the claim for permanent partial disability benefits must be denied.
The ALJ ordered employer/carrier to pay claimant’s related medical expenses, with credit given for amounts already paid. Since claimant’s own physician released him to full duty and no further care has been recommended, the ALJ found no specific ongoing medical treatment is necessary.
Injuries – Claimant underwent retinal surgery to remove a foreign body in his right eye.
Attorney(s) - Plaintiff – Jay L. Kessler of the Kessler Law Office, Magna
Attorney(s) - Defense – David H. Tolk of Richards, Brandt, Miller & Nelson
Expert Witness(es) - Plaintiff – Dr. Michael Teske–treating ocular surgeon
Expert Witness(es) - Defense – Dr. Francis Wapner–independent medical evaluation (IME) physician
Damages – Claimant sought medical benefits, benefits for recommended medical care, temporary total disability benefits and permanent partial disability benefits. Employer/carrier had already paid some of claimant’s medical expenses and approximately $1,184.50 in temporary total disability benefits by the date of the hearing on this claim.
Facts/Contentions – Claimant worked as a mechanic in employer’s shop. He was replacing a bearing in the hub of a wheel, using an air-hammer and wearing a face-shield. A piece of the chisel on the air-hammer flew off the tool assembly and up under claimant’s face-shield, where it struck and lodged in his right eye. Claimant reported the incident to his supervisor and was taken to the emergency room at a local hospital. He was transported to Sale Lake City that same day to undergo retinal surgery. Claimant’s treating surgeon released him to light duty two weeks after the accident and to full duty two months after the accident.
Employer/carrier conceded liability and causation and paid some benefits. However, the parties disagreed over the issue of permanent impairment. At the hearing on his petition for benefits, claimant contended that he suffered some degree of permanent impairment as a result of the industrial accident. He testified that at temperatures above 75 degrees Fahrenheit, his eye will flare up, swell and turn red. Claimant described light and shadow distractions in his eye, headaches and pain, as well as ongoing irritation and twitches. He uses over-the-counter eyedrops continually. His treating physician diagnosed him with permanent retinal scarring and a 5-10% loss of function in the right eye, with all of this scarring and loss of function related to the industrial injury. The treating physician did not rate claimant’s permanent whole-person impairment. Employer/carrier, relying on the findings of the IME physician, argued that the industrial accident did not leave claimant with any retinal pathology, cataracts, changes in the region of the ora serrata or degeneration associated with threatened retinal detachment. The IME felt claimant had reached maximum medical improvement and did not sustain any permanent partial impairment as a result of his industrial accident.

TRIP INJURY CLAIM
Case Type --WA, SF; Work-related trip injury claim
Case Name --(Name of case withheld)
Case Number --050061
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 02/06
Amount --The ALJ found that claimant did not meet his burden of proof with respect to causation, and that claimant did not suffer an injury that arose out of the course of his employment with this employer at any time. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant suffered low back injuries (causation disputed).
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Michael E. Dyer of Blackburn & Stoll
Facts/Contentions --Claimant worked as a “worm” (known as a “gopher” in other industries) on employer’s oil drilling rig. At the hearing on his claim, he stated that he was injured while running up some stairs, when he tripped over “a cable” and caught himself before falling, but wrenched his back in the effort to avoid falling down the stairs. He admitted that there were no cables lying around for him to trip over, but insisted that he tripped on something. He said he told two co-workers about the incident, but the co-workers denied that claimant ever told them about injuring his back that day. Claimant later admitted during the hearing that he did not tell anyone about the alleged injury. The ALJ noted that claimant also appeared confused about when and how he hurt his back when he testified on rebuttal.
Employer/carrier contended that the alleged incident at work, if it really occurred, was not the cause of claimant’s low back problems. Claimant’s two co-workers testified at the hearing that claimant told them he hurt his back “dead-lifting” weights while in jail. Claimant’s supervisor noted that claimant wore a back brace from the time he began work for employer.

REPETITIVE MOTION INJURY/OCCUPATIONAL DISEASE CLAIM
Case Type --WA, SI, OD; work-related repetitive motion injury/occupational disease claim
Case Name --Brenda J. Treadway vs. State of Utah Department of IT and/or Workers’ Compensation Fund
Case Number --060206
Court/Judge --La Jeunesse
Verdict/Settlement --Order, 02/06
Amount --The ALJ adopted the medical panel’s report and found that since claimant did not miss any time from work as a result of her symptoms, she is not entitled to any temporary total disability benefits. Since the panel found claimant is not medically stable and therefore cannot be awarded a whole-person permanent impairment rating, the ALJ dismissed the claim for permanent partial disability benefits as unripe for adjudication. The ALJ ordered employer/carrier to pay 10% of all claimant’s related medical expenses for the treatment of her recurrent right carpal tunnel symptoms.
Injuries --Claimant was diagnosed with bilateral carpal tunnel syndrome. She underwent right and left carpal tunnel release surgeries, but when she sought a repeat right carpal tunnel release surgery for her right arm and hand, her employer’s insurer declined to pay for it, claiming that the return of symptoms was caused by several non-occupational factors.
Attorney(s) - Plaintiff --David K. Smith
Attorney(s) - Defense --Jamison D. Ashby
Expert Witness(es) --The parties agreed to waive a hearing on this matter and refer the case directly to a medical panel consisting of Dr. Joseph Q. Jarvis--chair and occupational medicine specialist; and Dr. J. Eric Vanderhooft--hand surgeon.
Facts/Contentions --Claimant contended that her carpal tunnel syndrome was caused by repetitive overuse of her hands in her data entry job.
Employer/carrier maintained that claimant failed to file her complaint within six years of the arising of the cause of action, as Utah law requires, and that her claim should therefore be barred. Employer/carrier also contended that the return of claimant’s carpal tunnel symptoms was caused not by her work activities, but by non-occupational factors such as her crocheting, tole painting, yard work, cross-stitch and hand sewing. Claimant stated that she discontinued these activities when her symptoms became severe, approximately two years before the case was referred to the medical panel.
The medical panel found that 10% of claimant’s carpal tunnel symptoms were caused by her work activities and the remaining 90% of her symptoms were caused by non-occupational factors. The panel concluded that claimant has not stabilized medically from the return of her symptoms; the panel stated in their report that they were therefore unable to award claimant a whole-person permanent impairment rating.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Holly Starks vs. Logan Nursing and Rehabilitation and/or Workers’ Compensation Fund
Case Number --20040272
Court/Judge --Lima
Verdict/Settlement --Order, 02/06
Amount --The ALJ adopted the medical panel’s report and found that claimant suffered a temporary aggravation of her industrial injury one year after she was hurt at work. The ALJ found that because claimant was never taken off work or determined to be medically unstable by any of her medical treatment providers, she was not entitled to the additional temporary total disability benefits she sought. However, the ALJ found that the medical record indicated claimant was temporarily and totally disabled following her surgery, and employer/carrier should pay her benefits for this time period. The ALJ ruled that employer/carrier should pay medical benefits for between 12 and 20 physical therapy and pool sessions and should not have to pay for any further therapy sessions.
The ALJ ordered employer/carrier to pay claimant $1,660.80 in accrued temporary total disability benefits, with credit given for benefits already paid. Employer/carrier must also pay for 12 to 20 physical therapy and pool sessions as described above, with credit given for benefits already paid.
Injuries --Claimant suffered a low back injury. She was later diagnosed with a lumbar disc herniation at L4/5, lumbar radiculopathy at L4/5 and degenerative disc disease with disc space collapse at L3/4, L4/5 and L5/S1. She underwent a left L5 laminectomy and discectomy. Dr. Sawchuk awarded claimant a 10% industrially related whole-person impairment rating.
Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Hans M. Scheffler
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel consisting of Dr. Joseph Q. Jarvis--chair and occupational medicine specialist; and Dr. Joel Dall--physiatrist.
Damages --Employer/carrier paid claimant $5,190 in temporary total disability benefits, $5,397 in permanent partial disability benefits and $17,963.01 in medical benefits before the hearing was held on this claim. Facts/Contentions --Claimant was transferring a resident at the facility where she worked; she experienced back pain as she lifted and twisted the patient. She sought treatment after the pain worsened over the next few days.
Employer/carrier accepted liability for the injury and paid benefits, but denied claimant’s assertion that she could not return to work because of her industrially related back injury.
The medical panel concluded that claimant suffered a non-industrial aggravation of her industrial injury about a year after she was hurt at work. The panel found that the 12 physical therapy sessions claimant received over the four weeks following the aggravation were reasonable and necessary to treat the aggravation of her industrial injury, and an additional eight sessions of pool therapy would also be reasonable. However, the panel found that the subsequent 55 physical therapy sessions claimant received were not reasonable or necessary to treat her industrial injury. The panel concluded that the notes on claimant’s therapy did not indicate that she improved or experienced diminished symptoms during the time she received physical therapy.

SLIP/FALL INJURY CLAIM
Case Type --WA, SF; Work-related slip/fall injury claim
Case Name --Samina Tabesh vs. SOS Staffing and/or Indemnity Insurance Company of North America
Case Number --040687
Court/Judge --Lima
Verdict/Settlement --Order, 02/06
Amount --The ALJ adopted the medical panel’s report and found that claimant proved she was injured in an industrial accident and was entitled to benefits. The ALJ ordered employer/carrier to pay claimant $540 in accrued temporary total disability benefits for the time she was off work following her injury. Accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses through the date when she stabilized medically following her industrial injury.
Injuries --Claimant suffered neck and back sprain/strain, a sprained left ankle and a head injury.
Attorney(s) - Plaintiff --David K, Smith
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 chaired by Dr. James Wilcox.
Facts/Contentions --Claimant was sent by employer to do temporary work at a medical company as an assembler; her duties there included packaging catheters. Claimant was injured when she stood up and slipped on a catheter part on the floor. She fell, struck her upper back and neck against her chair and slid underneath the work table, where she landed on her hips and back. She informed her supervisor of the incident and was sent to the company nurse, who gave her a bandage for her swollen left foot and recommended that she take over-the-counter pain medication for five days. Claimant was off work for two days because her neck was swollen and sore, but returned to work after that time. She took Tylenol for five days. After two days back at work, claimant sought treatment at a local hospital, where she was diagnosed with neck and back strain, a head injury and a left ankle sprain and taken off work for four more days. When claimant informed her employer that she had been released from work, the employer fired her. She was taken off work for another two weeks after her neck and back symptoms did not abate. She continues to suffer ongoing pain running from the back of her head to her neck and trapezius. At the hearing on her claim, she testified that she cannot push her hands back behind her shoulders or lift both hands in the air. She also suffers from momentary blackouts and headaches.
Employer/carrier admitted that the accident occurred, but denied that it caused claimant’s current condition. Employer/carrier noted that claimant was injured twelve years before the date of this injury when a ceiling fell on her and knocked her unconscious. However, her treating health care providers felt this previous injury resolved completely.
The medical panel examined claimant and reviewed her medical records. The panel found a medical causal connection between claimant’s industrial accident and her symptoms. The panel found that claimant stabilized medically three weeks after the industrial accident. The panel found that claimant’s current symptoms are not related to the industrial accident, and no further treatment is necessary for the injuries claimant sustained in the industrial accident.

CLAIMS FOR WORK INJURIES
Case Type --WA, SF; Work-related fall injury claim, work-related injury claim
Case Name --Hernan Martinez vs. Historical Arts & Casting, Incorporated
Case Number --20021344, 20021345
Court/Judge --Marlowe
Verdict/Settlement --Order, 02/06
Amount --The ALJ adopted the medicl panel’s report and ruled that since the panel felt future surgery is not necessary, claimant failed to prove his entitlement to future medical care. The ALJ therefore dismissed these claims with prejudice.
Injuries --Claimant suffered low back injuries.
Attorney(s) - Plaintiff --David W. Parker
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 Dr. Madison Thomas. After the panel issued its report, the report was returned to the panel for clarification, but Dr. Thomas died before the clarification was made and the report was subsequently lost. The ALJ then appointed Dr. Glenn Momberger as chair of the medical panel. Dr. Reed Fogg also served on the panel chaired by Dr. Momberger.
Facts/Contentions --Claimant was first injured while working for this employer when he slipped and fell on ice. He was next injured about five and a half months later while working for another employer and sustained further low back injuries. He was injured a third time a little less than three months after the date of the second injury while lifting a section of railing. At the time of the third injury, claimant was working for this employer.
Employer/carrier accepted liabiity for the first and third injuries, but claimant’s medical treatment provider and employer/carrier’s independent medical evaluation (IME) physician disagreed over whether claimant was a viable candidate for future decompression and fusion surgery. At the hearing on these claims, the parties told the ALJ that they had reached agreement on all issues arising from claimant’s two industrial injuries with this employer except the issue of whether future surgery was necessitated by claimant’s industrial injuries with this employer. The parties stipulated to the referral of these claims to a medical panel.
After Dr. Thomas’ death, the panel chaired by Dr. Momberger examined claimant and reviewed his medical records. The panel concluded that surgery is not recommended and the need for it is not very likely in the foreseeable future.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --(Name of case withheld)
Case Number --040604
Court/Judge --Hann
Verdict/Settlement --Order, 02/06
Amount --The ALJ adopted the medical panel’s report and found claimant failed to prove his current symptoms were related to his work activities on the day of the incident with the propane tank. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant was diagnosed with severe degenerative disc disease with multiple disc herniations and possible alcoholic cerebellar degeneration which caused some of claimant’s symptoms and exacerbated others. Attorney(s) - Plaintiff --Claimant was represented pro se.
Attorney(s) - Defense --Lisa Altman
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel chaired by Dr. Joseph Q. Jarvis--occupational medicine specialist, and including Dr. Joel Dall--physiatrist.
Facts/Contentions --Claimant worked for employer as a hod tender, supplying masons with brick and mud, building scaffolding and assisting with everything on the job but the actual laying of bricks. He stated at the hearing on his claim that he was twisting and lifting a 100-pound propane tank that was sitting on the ground, somewhat stuck in snow, when he felt an immediate pain that shot through him from his back to his heels. He said he became nauseated, went numb all over and blacked out. He stated that although he has had ongoing back pain over the past couple of years, it had never been so severe as to make him lose consciousness. He was unable to continue working, and his boss took him home. He sought treatment the next day, and his treating physician felt his symptoms were related to his work activities in trying to move the propane tank.
Employer/carrier contended that claimant’s symptoms were caused by long-standing degenerative (non-industrial) spinal disease. To bolster this position, they relied on the findings of their independent medical evaluation (IME) physician, who found claimant’s back condition to be degenerative in nature. Employer/carrier also pointed out that according to the medical record, claimant told his treating physician he had been experiencing pain associated with heavy lifting, accompanied by motor instability, paresthesia and anesthesia in both legs, for the two months preceding the date of the incident. The medical record also showed that while claimant’s treating physician diagnosed him with industrial disc herniation and industrial lumbar radiculopathy, he also noted the presence of non-industrial degenerative disease and a possible neurological disorder stemming from cerebellar involvement, which caused motor ataxia in claimant’s legs.
Claimant underwent a brain MRI, and his treating physician agreed that he showed symptoms of alcohol-related cerebellar degeneration. However, the treating physician added, he still felt part of claimant’s low back injuries were related to the incident at work.
Prior to working for this employer, claimant worked for another brick company for approximately 10 years. At the hearing on his claim, he estimated that in that time he had nine industrial injuries, including two falls from over 10 feet. He said his back hurt all the time and had done so for several years prior to the incident that gave rise to this claim. He said he drank heavily in the past, but did not do so any longer. His record showed six past DUI arrests.
The panel examined claimant, reviewed his medical records and concluded that there was no causal relationship between claimant’s low back condition, which was the result of wear and tear over many years, and the incident which gave rise to this claim.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Staci Faye vs. UTP Group and/or Workers’ Compensation Fund
Case Number --040743
Court/Judge --Lima
Verdict/Settlement --Order, 02/06
Amount --The ALJ adopted the medical panel’s report and ruled that claimant stabilized medically three months after her industrial injury. The ALJ therefore dismissed, with prejudice, the claims for further medical treatment expenses and other benefits related to the period following that date. However, the ALJ found that employer/carrier erred in calculating claimant’s average weekly wage. The ALJ therefore re-calculated claimant’s average weekly wage and ordered employer/carrier to pay claimant the difference between $356 per week and $422 per week to reflect the increased amount of temporary total and temporary partial disability compensation she was due for the three-month period following her industrial injury.
Injuries --Claimant suffered a thoracolumbar sprain-strain with left-side radiculopathy. Her treating chiropractor concluded that claimant sustained a 5% industrially related whole-person impairment rating from this injury. She had a prior 3% industrially related whole-person impairment rating.
Attorney(s) - Plaintiff --David J. Holdsworth
Attorney(s) - Defense --Floyd Holm
Expert Witness(es) --Because of conflicting medical testimony, this case was referred to a medical panel chaired by Dr. Alvin J. Wirthlin and including Dr. Glenn L. Momberger.
Damages --Employer/carrier paid claimant’s medical expenses for three months following the industrial accident. Employer/carrier also paid claimant $3,127.75 in temporary total disability compensation and $3,587.87 in temporary partial disability compensation to cover the three months following her industrial accident.
Facts/Contentions --Claimant worked as a stagehand on various theatrical productions and concerts to which she was assigned by her union. Utah Theatrical Productions (the UTP Group) contracted with the various production employers to issue paychecks to the stagehands and maintain workers’ compensation insurance coverage on them.
As part of her stagehand duties, claimant set up and took down lights, loaded and unloaded costumes, unloaded and loaded trucks, put up and took down trusses, set up and took down speaker stacks, ran ladders, put up spotlights at awkward angles and ran a large spotlight in awkward positions. She was working the touring production of Riverdance in the wardrobe department on the day she was injured. At the hearing on her claim, she stated that on the day she was injured, she lifted boxes weighing 30 to 40 pounds from the floor to shoulder height three times, sat down, stood up and experienced severe pain from her waist down her left leg. She sought treatment at WorkMed and was diagnosed with lumbar and thoracic sprain/strain. WorkMed released her to modified work with the restrictions of no kneeling or squatting, no lifting over five pounds, no sitting/standing over 15 minutes and limited bending/twisting. She later received physical therapy for her lumbar spinal injury, but stated at the hearing that currently she can only hang up costumes and must then go home. She sought further medical benefits for ongoing medical care, including chiropractic treatment, and further temporary total and temporary partial disability benefits.
Employer/carrier accepted liability for the accident and paid benefits for three months following the date when claimant was injured. However, employer/carrier contended that claimant stabilized medically three months after the accident and was not entitled to any further medical care. Employer/carrier maintained that claimant’s ongoing symptoms were produced by non-industrial causes, noting that every 10 days, claimant filled the 30-gallon water tank on the Nomad travel trailer in which she lived by using three- and five-gallon water containers. According to a surveillance video made by employer/carrier, claimant lifted the three-gallon containers when they were filled to the top and placed them in the bed of her truck, but did not fill the five-gallon containers to the top before lifting them. Claimant admitted to performing these chores, but stated that she took pain medication before performing them and could not sleep afterwards because her low back pain was so severe.
The medical panel examined claimant, reviewed her medical records and concluded that she stabilized medically from this industrial injury three months after it occurred. The panel felt claimant did not sustain any further permanent whole-person impairment in this injury, although she does have a pre-existing 3% industrial whole-person impairment. The panel felt further chiropractic care was not needed to treat this industrial injury, and any medical care claimant received after her stability date was not necessitated by this industrial injury.

WORK INJURY CLAIM
Case Type --WA; Work-related injury claim
Case Name --Clint J. Maestas vs. Greg Ferderber dba Echo Industries (uninsured); and Uninsured Employers’ Fund
Case Number --050551
Court/Judge --Marlowe
Verdict/Settlement --Order, 02/06 Amount --The ALJ declared both employer and worker to be in default because they did not appear at the hearing on this claim. The ALJ therefore found that since he failed to appear at the hearing, claimant failed to prove that he suffered an industrial injury or that his employer was liable. The ALJ therefore dismissed this claim with prejudice.
Injuries --Claimant alleged unspecified injuries.
Attorney(s) - Plaintiff --Claimant filed his claim pro se, but did not appear at the hearing on his claim.
Attorney(s) - Defense --Employer did not appear at the hearing on this claim and failed to maintain workers’ compensation insurance on his employees. Elliot R. Lawrence answered and appeared for the UEF.
Facts/Contentions --In his application for a hearing, claimant alleged that he suffered an industrial injury on 02/08/05. The ALJ notified the employer and the UEF that the claim had been filed and required them to file an answer within 30 days. Employer did not file an answer; the UEF filed an answer denying the claim in its entirety. The ALJ scheduled a hearing on the claim and notified the parties of the date and time. The notice of the hearing also stated that parties who failed to appear at the hearing might be declared in default.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Roy T. Shepherd vs. U. S. Steel (self-insured)
Case Number – 20040085
Court/Judge – Marlowe
Verdict /Settlement – Order, 03/06
Amount – The ALJ adopted the medical panel’s report and ordered self-insured employer to pay all of claimant’s related medical expenses for treatment of his spinal pathology at L3/4, plus interest and applicable travel expenses.
Injuries – Claimant suffered a right-side disc herniation at L3/4 with a disc bulge at L2/3 and related right-side radiculopathy. Claimant’s original treating physician awarded claimant a 5% industrially related whole-person impairment rating, but in 2004 he upgraded that rating to 19% for all claimant’s back problems, with 50% of the total impairment related to the 1985 industrial accident. At that time, the original treating physician opined that ongoing medical treatment was necessary, though he did not recommend surgery. Attorney(s) - Plaintiff – Claimant was represented pro se.
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 chaired by Dr. Joseph Q. Jarvis–occupational medicine specialist; and including Dr. Joel Dall–physiatrist.
Facts/Contentions – Claimant was originally injured in 1985, while transferring an 85-pound oil pump from an empty drum to a full one. He crouched down to lift the pump, put his arms underneath it and lifted it, stood up a bit, twisted to the right and started to lower it again when he felt a sharp pain in his back. He dropped the pump and fell to his knees. A CT scan taken shortly after the accident showed disc bulges at L2/3, and claimant’s treating physician later found evidence of a disc herniation at L3/4. The treating physician took claimant off work, treated the injury with rest and therapy and released claimant to return to work seven weeks later. Claimant continued to visit the physician for back and right leg pain, and the treating physician opined that claimant might eventually need surgery.
Self-insured employer accepted liability and paid benefits for claimant’s industrial injury, but contended that his ongoing and current spinal problems are not medically causally related to his industrial accident. After leaving work at U. S. Steel approximately one year after he was injured, claimant worked a variety of jobs, occasionally lifting 50 to 60 pounds, lifting 30 to 40 pounds once a week and stocking shelves with canned goods, sometimes in gallon cans. Claimant stated that he had no trouble with any of this lifting; he retired in 1997.
About a year before he retired, claimant slipped on a loose rock while deer-hunting and fell approximately 10 feet, landing on his back. Nerve conduction studies performed about a month after claimant’s fall showed mild abnormalities in the left and right sural nerves with mild prolongation of the distal sensory latencies consistent with an early sensory-type peripheral neuropathy. Claimant’s treating physician at that time ruled out diabetes, collagen vascular disease, rheumatoid arthritis or vitamin (B-12 or folic acid) deficiency as causal factors in claimant’s back pain. The treating physician opined that the degenerative disease in claimant’s spine was possibly causally related to his 1985 industrial injury.
A CT scan taken in 2003 showed degenerative changes at every level, and a 1994 MRI showed degenerative disc disease and foraminal stenosis. The medical record showed that claimant visited various doctors over the years whenever his back pain flared up, although many records were missing because the injury occurred so long ago. In 2004, claimant’s original treating physician opined that the ongoing back pain claimant suffered was medically causally related to the 1985 industrial accident.
Self-insured employer contended that claimant’s ongoing back pain was not medically causally related to his industrial accident. An independent medical evaluation (IME) physician concluded that the degenerative changes in claimant’s spine would have predated the 1985 industrial accident. The IME physician felt the accident did not cause claimant’s continuing back pain.
The medical panel examined claimant, reviewed his records and concluded that there is a medical causal connection between claimant’s current pathology of the spine at L3/4 and his industrial accident. However, the panel added, the 5% whole-person impairment rating claimant was originally awarded for this condition is still appropriate. The panel felt the medical treatment claimant received for his back injury since 1986 was medically necessitated by his industrial accident, and no treatment is currently recommended beyond medication management. However, the panel noted, it is possible that injections and/or surgery may become necessary at some future date.

OCCUPATIONAL DISEASE CLAIM
Case Type – OD; Occupational-disease-related claim
Case Name – Shari Brown vs. La-Z-Boy (self-insured)
Case Number – 2001003
Court/Judge – Poelman; then Marlowe
Verdict /Settlement – Order, 03/06
Amount – ALJ Poelman ruled that this claim was not barred by the 180-day statute of limitations for reporting an injury which Utah law imposes on injured workers; ALJ Poelman therefore required the parties to submit a stipulation of facts so that the case could be referred to a medical panel. ALJ Marlowe took over the case at this point after ALJ Poelman left the Labor Commission, and appointed the second medical panel.
ALJ Marlowe adopted the second medical panel’s report as submitted by Dr. Jarvis and ordered self-insured employer to pay all of claimant’s related medical expenses for treatment of her elbow condition. The ALJ dismissed the claim for permanent partial disability benefits without prejudice as unripe for adjudication, since claimant has not been awarded a whole-person permanent impairment rating. The ALJ dismissed the claim for temporary total disability benefits without prejudice after the attorneys clarified at the hearing that it concerned time claimant was off work because of her shoulder injury.
Injuries – Claimant initially developed a right shoulder condition and underwent arthroscopic surgery in 2001. She filed this claim for benefits after she later developed right elbow pain about three months following the shoulder surgery and was diagnosed with right lateral epicondylitis.
Attorney(s) - Plaintiff – Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense – Henry K. Chai II, then Bret A. Gardner, of Blackburn & Stoll
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel chaired by Dr. Edward Holmes. Dr. Holmes stepped down as a medical panel chair before the report could be clarified in response to objections filed by the parties, and ALJ Marlowe excluded the report from evidence and appointed a new panel chaired by Dr. Joseph Q. Jarvis.
Facts/Contentions – Claimant began working for self-insured employer in 1989 as a seamstress and remained in that position for approximately seven years, until she became a sewing trainer. She continued in that position for four years and then became the lead person in the sewing department. Her duties in this position included supervising and directing around 50 people. At the hearing on her claim, she said that while working as a sewing lead she spent only around 30 minutes of an eight- or nine-hour day sewing; however, when she worked as a seamstress, she sewed most of the workday. She stated that she has been receiving conservative treatment (therapy and injections) for her right shoulder condition since about ten and a half years after she first began working for employer. She began noticing pain in her right elbow when moving carts, sewing, removing staples (which she did for about 30 minutes per week), washing windows and performing a number of other tasks at work after she became the sewing department lead. She reported the right elbow pain to her supervisor four months after she began noticing it and later filed this claim for benefits in connection with the right elbow condition.
Claimant’s treating physician opined that she had elbow problems “all along,” and that these problems were caused by the same work activities that caused the shoulder problems, but claimant probably did not notice the elbow pain and numbness because of her overshadowing shoulder pain. He treating physician recommended surgery for the elbow condition.
Self-insured employer contended that claimant’s elbow problems were not caused by her work activities, but were caused by her crocheting and other non-industrial crafting activities. An independent medical evaluation (IME) physician concluded that claimant’s epicondylitis was an inflammatory tendinitis type which gets better over time, and no permanent work restrictions should be imposed. The IME physician also felt no permanent whole-person impairment rating should be awarded. The ALJ noted that the IME physician did not offer an opinion about whether claimant’s prior work activities could have caused or contributed to claimant’s elbow condition.
The medical panel chaired by Dr. Jarvis examined claimant, reviewed her records and concluded that her elbow condition was medically causally related to her work activities, with 50% of the epicondylitis attributable to work activities and 50% attributable to non-industrial activities. The panel felt physical therapy and intermittent injections can improve or maintain the present condition, but surgery is not ruled out, depending on the opinion of claimant’s treating physician.

FALL-RELATED INJURY CLAIM
Case Type – WA, SF; Work-related slip/fall injury claim
Case Name – Darren Huff vs. AOL Time-Warner; and/or Indemnity Insurance Company of North America
Case Number – 050375
Court/Judge – Marlowe
Verdict /Settlement – Order, 03/06 Amount – The ALJ found that claimant failed to prove by a preponderance of the evidence that he suffered a significant re-injury or incurred an increased permanent impairment when he slipped and fell. The ALJ therefore dismissed this claim with prejudice.
Injuries – Claimant was diagnosed with a soft-tissue and muscle injury to his back.
Attorney(s) - Plaintiff – Jay K. Barnes of the Myler Law Office
Attorney(s) - Defense – Kristy L. Bertelsen of Blackburn & Stoll
Expert Witness(es) - Plaintiff – Dr. Matthews; Dr. Penka
Expert Witness(es) - Defense – Dr. Morgan; Dr. Knoebel–independent medical evaluation (IME) physicians
Facts/Contentions – Claimant slipped and fell on some ice while getting out of his car in the parking lot at work and struck his back on the door-jamb of his car. He claimed he suffered a compensable industrial injury. Employer/carrier admitted that the accident occurred, but denied that it caused any additional permanent impairment or significant re-injury. Employer/carrier pointed out that the medical record showed claimant had significant pre-existing spinal injuries from an automobile accident five years before this injury. He underwent a laminectomy and fusion from T11 through L3 in 1998, with subsequent hardware removal, discectomy, corpectomy and stabilization surgery the following year. Employer/carrier also contended that claimant had substantial pre-existing degenerative spinal disease; the medical record showed that two years before this accident, claimant underwent decompressive laminectomies, facetectomies and foraminotomies at L5/S1 as a result of hypertrophic osteoarthritic spondylitic disease and hypertrophy of the ligamentum flavum at L5/S1 with a conjoined nerve root. Later the same year, he underwent a fusion at L5/S1 for the same condition and was also diagnosed with a herniated nucleus pulposus. At the time of the industrial accident, employer/carrier contended, claimant was taking daily pain medication and using a handicapped parking pass.
Dr. Matthews diagnosed claimant with a soft-tissue and muscle injury after the fall. Dr. Penka read an MRI taken at that time to reveal some hypertrophic changes, but no disc material in the L5/S1 disc space.
Dr. Knoebel and Dr. Morgan both felt the fall caused only a temporary exacerbation of claimant’s pre-existing spinal pathology.
When claimant’s pain from the accident did not abate, Dr. Penka recommended a discogram, and as a result of what it revealed, he performed a lumbar hemilaminectomy, facetectomy, and foraminotomy at L5/S1 left with micro-dissection/exploration of the L5/S1 left annulus fibrosis and treatment of the left S1 nerve root due to the hypertrophied ligamentum flavum. Dr. Penka did not attribute the need for this surgery to the industrial accident, and neither claimant’s treating physicians nor the IME physicians awarded claimant a permanent whole-person impairment rating on the basis of his industrial accident.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Robert T. Hawkins vs. Best Buy Company, Incorporated
Case Number – 20031085
Court/Judge – Eblen; then Sessions
Verdict /Settlement – Order, 03/06
Amount – The ALJ adopted the medical panel’s opinion and ruled that claimant failed to prove through a preponderance of the evidence that his medical condition was caused by his industrial accident. The ALJ therefore dismissed this claim with prejudice.
Injuries – Claimant suffered an unspecified medical condition.
Attorney(s) - Plaintiff – Franklin L. Slaugh
Attorney(s) - Defense – Mark D. Dean of Blackburn & Stoll
Expert Witness(es) –Because of conflicting medical testimony, this case was referred to a medical panel.
Facts/Contentions – Claimant contended that his medical condition was caused by the industrial accident he suffered while working for employer.
Employer/carrier denied that claimant’s medical condition was caused by the alleged industrial accident.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Easter E. Jenkins vs. Home Care Professional; and/or Workers Compensation Fund
Case Number – 20040378
Court/Judge – Eblen; then Sessions
Verdict /Settlement – Order, 03/06
Amount – The ALJ adopted the medical panel’s report and ruled that claimant’s 2002 spinal surgery was medically necessary to treat her industrial injury. The ALJ therefore ordered employer/carrier to pay claimant’s related medical expenses for the surgery, plus an add-on attorney’s fee as set by Utah’s workers’ compensation statute.
Injuries – Claimant suffered a burst fracture at L1 and underwent surgery to relieve pain after her condition worsened.
Attorney(s) - Plaintiff – K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense – Hans M. Scheffler
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel. Facts/Contentions – Claimant was injured in 1996, and her condition worsened in 1999. ALJ Eblen ruled that claimant was permanently and totally disabled by her industrial injury. When ALJ Sessions took over the case following ALJ Eblen’s departure from the Labor Commission, the only issue remaining for adjudication was the question of whether the surgery claimant underwent in 2002 was necessitated by her industrial injury. Claimant contended that she needed the surgery because of her industrial accident; employer/carrier contended that the need for the surgery did not arise out of the industrial accident. Because the parties’ medical experts disagreed on the issue, the ALJ referred it to a medical panel.
The medical panel found that claimant’s need for surgery did arise out of her industrial injury, since her condition worsened in 1999. The panel found that after her condition worsened, claimant’s pain became unbearable, and she consented to the surgery in an attempt to relieve it. The panel noted that the surgery successfully reduced claimant’s pain.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Hazel O. Maycock vs. Lifetime, Incorporated and/or Zurich American Insurance Company of Illinois
Case Number – 050524
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 03/06
Amount – Per claimant’s withdrawal, the ALJ dismissed this claim without prejudice as unripe for adjudication.
Injuries – Claimant suffered unspecified injuries.
Attorney(s) - Plaintiff – Michael Gary Belnap, Ogden
Attorney(s) - Defense – Mark L. Anderson of Christensen & Jensen
Damages – Claimant sought benefits for permanent and total disability.
Facts/Contentions – Claimant stated in her application for a hearing that she was injured on 06/10/04. She claimed permanent and total disability.
Employer/carrier denied that claimant was permanently and totally disabled as a result of her industrial accident.
At the hearing, claimant withdrew her claim for permanent and total disability compensation on grounds that the matter was not yet ripe for adjudication. Employer/carrier did not object to the dismissal of the claim without prejudice. A dismissal without prejudice means that claimant can re-file her claim if necessary at some time in the future if she believes it is then ripe for adjudication.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Ronald Seely vs. NFT Transportation
Case Number – 20040398
Court/Judge – Sessions
Verdict /Settlement – Order, 03/06
Amount – The ALJ found that claimant failed to prove by a preponderance of the evidence that his industrial accident was the medical cause of his permanent and total disability, since much of that disability was caused by the inflammatory bowel disease, according to the vocational rehabilitation expert. The ALJ therefore dismissed the claim for permanent total disability benefits without prejudice. The ALJ ordered employer to pay claimant’s medical expenses related to treatment of his spinal injuries, including the costs of the two surgeries. The ALJ ruled, however, that medical expenses for treatment of the inflammatory bowel disease were not compensable, and employer is not required to pay them. The ALJ awarded claimant temporary total disability benefits for the period running from 03/06/96 through 01/03/01, with an offset to be given for any benefits already paid. The parties stipulated that the weekly rate of compensation would be the highest allowed by statute. The ALJ awarded claimant permanent partial disability benefits for his 20% industrially related whole-person impairment, with an offset to be given for any benefits already paid. The ALJ dismissed the claim for temporary partial disability benefits, finding that claimant is not entitled to these benefits because he did not put on any evidence at the hearing to support his claim that he was entitled to them.
Any accrued awards are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from any accrued awards and paid directly to claimant’s attorney. No evidence was presented at the hearing to indicate that there are any medical bills outstanding or other bills unpaid.
Injuries – Claimant suffered spinal injuries and underwent two back surgeries.
Attorney(s) - Plaintiff – Bradford D. Myler of the Law Office of Bradford D. Myler
Attorney(s) - Defense – Bret A. Gardner of Blackburn & Stoll
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel.
Damages – Claimant sought permanent total disability compensation.
Facts/Contentions – Claimant contended that his industrial injury and the resulting surgeries left him permanently and totally disabled and caused his inflammatory bowel disease.
Employer argued that though claimant was truly unable to work, his disability was not caused entirely by his spinal injuries, but by a combination of the spinal injuries and the inflammatory bowel disease.
The medical panel found a medical causal link between claimant’s industrial accident and his spinal condition. However, the panel did not find a medical causal link between the industrial injury and the inflammatory bowel disease. The medical panel found that claimant sustained a 20% whole-person impairment from the industrial spinal injuries he suffered. The panel did not rate claimant’s impairment from the inflammatory bowel disease, since it was not industrially related.
An unnamed vocational rehabilitation expert who testified at the hearing stated that given the functional capacity evaluation results which related only to the spinal injuries, claimant would be able to continue working. However, the vocational rehabilitation expert concluded, it was the non-industrial inflammatory bowel disease on top of the spinal injuries that rendered claimant permanently and totally disabled.

ORDER ON MOTION FOR REVIEW
Case Type – WA, AA; Work-related automobile accident
Case Name – Steven A. Alexander vs. Salt Lake County
Case Number – 030089
Court/Judge – This order was issued by the Appeals Board of the Utah Labor Commission, comprised of Colleen S. Colton, chair; Patricia S. Drawe; and Thomas Lewis.
Verdict /Settlement –Order, 03/06
Amount – The Appeals Board found that although claimant received a substantial personal benefit from being allowed to retain his patrol vehicle when he was off shift, the County received the predominant benefit from his travel, since he was always on call and was required to respond to any police calls that came over the radio, as well as to any crimes committed in his presence. The Board therefore denied the County’s motion for review and upheld the ALJ’s findings, ruling that the traffic accident and claimant’s resulting injury arose out of claimant’s employment and were therefore compensable.
Ms. Colton dissented from the majority opinion. She wrote that in Van Leeuwen v. Industrial Commission (Utah App. 1995), the decision turned on which party received the predominant benefit from the claimant’s travel. Since the claimant in this case did not have to pay the expenses of traveling to and from work, in Ms. Colton’s opinion, he and not the County was receiving the predominant benefits of driving his patrol vehicle while he was off shift. Furthermore, Ms. Colton noted, claimant’s work responsibilities did not cause or contribute to the accident. Ms. Colton felt that the accident was therefore subject to the coming-and-going rule and should not be compensable.
Injuries – Claimant suffered shoulder injuries in the accident.
Attorney(s) - Plaintiff – Brian Kelm
Attorney(s) - Defense – Salt Lake County Assistant District Attorney T. J. Tsakalos
Facts/Contentions – Claimant was a lieutenant in the Salt Lake County Sheriff’s Department, where he supervised the Detective Division. He was involved in a motor vehicle accident as he and his wife were driving to work in claimant’s Salt Lake County Sheriff’s Department vehicle. Claimant contended that he was in the course and scope of his employment at any time when he was driving that vehicle, since he was on call day and night seven days a week as part of his job duties. When he was driving the patrol vehicle, he was required to carry firearms, police identification, a uniform, flashlight, citation book and flares. He was also required to monitor the radio when he was driving the vehicle and respond to law enforcement situations and calls for assistance, although he was prohibited from responding in this fashion when he had civilians in the car. Salt Lake County contended that since claimant was driving his wife to her workplace en route to his own job when the accident occurred, he could not be considered to be on duty, and the “coming-and-going rule” should apply. The coming-and-going rule, according to the Appeals Board’s explanation, holds that injuries sustained while an employee is en route to or from work are not compensable.
The ALJ who presided at the hearing on this claim ruled that the accident was compensable, and the County filed this motion for review.
The Board noted in its opinion that the coming-and-going rule is not absolute. It provides for exceptions in cases where driving is a part of a worker’s actual duties and in cases where an employer provides transportation primarily for the employer’s own benefit and exercises control over the use of that transportation. In this case, the Board felt, the County did exercise control over the transportation it provided to its off-duty officers, and derived substantial benefit from having more law enforcement personnel on the streets and ready to respond to calls if needed. Claimant stated that he had actually used his vehicle several times during his off-duty hours to engage in such law enforcement duties as traffic stops and officer back-up.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Bonnie Baudino vs. Beehive Clothing (self-insured)
Case Number – 050566
Court/Judge – Hann
Verdict /Settlement – Order, 04/06
Amount – The ALJ adopted the medical panel’s report and found that claimant proved her shoulder injury was causally related to her work activities. The ALJ ordered self-insured employer to pay claimant $4,233.56 in accrued temporary total disability compensation for the time she was off work because of her injury and $6,930.22 in accrued permanent partial disability compensation for her 10% industrially related whole-person impairment. Self-insured employer must also pay all of claimant’s past related medical expenses, as well as expenses for future recommended treatment of this industrial injury. Accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney.
Injuries – Claimant suffered a right shoulder injury. She was diagnosed with elbow/shoulder tenosynovitis and underwent a course of physical therapy without improvement. She was later diagnosed with a possible full-thickness rotator cuff tear which was confirmed by an MRI. She underwent surgery to repair the rotator cuff tear. Dr. Colledge awarded claimant a 10% industrially related whole-person impairment rating after the surgery.
Attorney(s) - Plaintiff – Bryan A. Larson
Attorney(s) - Defense – Thomas D. Walk of Kirton & McConkie
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel chaired by Dr. Joseph Q. Jarvis–occupational medicine specialist; and including Dr. Bruce Newton-physiatrist.
Damages – Claimant sought past medical expenses, benefits for recommended medical care, temporary total disability benefits, temporary partial disability benefits and permanent partial disability benefits.
Facts/Contentions – Claimant worked for self-insured employer as a seamstress, working 40 hours per week. She was working on a power sewing machine which sat on a rectangular table on lockable wheels. The machine was about as high as claimant’s standing hip level when it was sitting on the table. At the hearing on this case, claimant said the vibration of the table made the machine roll forward, away from claimant, as she operated the machine. She said she hitched her chair forward to catch up with the machine, but eventually had to pull the machine back to its former location because she was getting too close to the worker in front of her. She said that when she did this, she stood up, bent at the waist, reached forward with both arms outstretched, put both hands under the front ledge of the table and jerked the table toward her to get it back in place. Claimant said she used the edge of the table to pull it forward because it was wider across than she could reach with both arms. Claimant is five feet tall, and the table and machine weighed well over 100 pounds; claimant estimated it might have weighed as much as 300 pounds. Claimant felt pain in her right shoulder which grew worse every day, to the point where her arm began going numb, with the numbness traveling down her arm into her hand. About two weeks after she began working on the machine, her employer sent her to a doctor for evaluation and treatment. Several of her treating physicians felt her shoulder problems were directly caused by her work activities.
Self-insured employer denied that claimant was injured as she alleged and also denied that there was either a medical or a legal causal link between claimant’s right shoulder condition and her work activities. Employer’s independent medical evaluation (IME) physician found no causal links between claimant’s shoulder symptoms and her work activities.
At the hearing on this claim, self-insured employer admitted that it did not have any evidence that would prove claimant suffered from a pre-existing condition; employer therefore withdrew the legal causation defense. The medical panel found that claimant’s shoulder injury was medically causally related to her work activities. Although the IME physician argued that claimant had a pre-existing shoulder condition which was treated with chiropracty, the panel reviewed the medical record, examined claimant and found that the chiropractic treatments were for pain in the upper back over the shoulder blade, with no evidence of shoulder impingement.

WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Angela K. Oliver vs. HealthSouth Corporation and/or ACE USA
Case Number – 050628
Court/Judge – Hann
Verdict /Settlement – Order, 04/06
Amount – The ALJ adopted the medical panel’s report and ruled that because claimant suffered from a pre-existing spinal condition, she had to meet the Allen test for extraordinary exertion in order to qualify for workers’ compensation benefits. Utah case law (Allen v. Industrial Commission) states that a previously injured worker seeking to qualify for benefits in connection with a work injury must prove that the work activities leading up to the work injury exceeded those a person might perform in everyday life, such as lifting a bag of groceries or a toddler, changing a tire, or taking a full garbage can out to the curb.
The ALJ ruled that claimant’s activities leading up to her injury were not extraordinary and did not meet the Allen test. The ALJ therefore dismissed this claim for benefits with prejudice.
Injuries – Claimant suffered multiple-level lumbar spinal injuries and underwent fusion surgery at L4/5.
Attorney(s) - Plaintiff – David K. Smith
Attorney(s) - Defense – Dori K. Petersen
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel
chaired by Dr. Alan J. Goldman–neurologist and psychiatrist.
Damages – Claimant sought past medical expenses, money for recommended medical care, permanent total disability compensation because she was unable to work following her industrial injury, and permanent partial disability compensation.
Facts/Contentions – Claimant worked for employer as an LPN. As she was leaving a patient’s room, she heard a woman in the room across the hall call for help. Claimant saw that the woman was attempting to get into bed from a wheelchair beside the bed, facing away from the door into the room. Claimant hurried into the room and saw that the patient was standing with one hand on the bed, one hand on the wheelchair, one foot outside of the lowered footrests on the wheelchair and one foot inside the footrests. The patient, an elderly woman who weighed no more than 100 pounds, did not have the strength to lift her inside foot over the footrests and swing around so she could sit down on the bed. Claimant came up behind the patient, put her arms around the patient and stabilized the patient enough so that the patient could lift her foot over the footrests. Claimant moved forward with the patient, still supporting her, and took some of the patient’s body weight to help her sit down on the bed. The patient then asked claimant to help her lie down, and claimant agreed. Claimant bent over to lift the patient’s legs onto the bed. As she was doing so, she heard a pop and felt a snap in her back. Claimant was unable to straighten her back up completely and went to the wall to steady herself. She got out of the patient’s room and into the hallway, where she called for help. Co-workers brought a wheelchair and took patient immediately to a doctor on staff.
An MRI taken four days after the incident revealed disc pathology at all lumbar levels. The doctor concluded that a disc bulge and degenerative changes had been present for some time and were exacerbated by the industrial injury. Another treating physician felt all of claimant’s spinal injuries were causally related to this industrial incident.
Employer/carrier accepted that claimant was injured as she claimed, but contended that they had already paid claimant all the benefits to which she was entitled. Employer/carrier also denied that claimant was permanently and totally disabled.
Employer/carrier later filed an amended response contending that claimant suffered from a pre-existing condition which contributed to her injury and denying that claimant was injured in the course and scope of her employment.
Claimant’s treating physicians and employer’s independent medical evaluation (IME) physician disagreed over whether claimant had a pre-existing condition and, if so, how much it contributed to her injury in this incident.
The medical panel examined claimant, reviewed the medical records and concluded that claimant did suffer from a pre-existing lumbar spinal condition which would have contributed to her industrial back injury.

WORK INJURY CLAIM
Case Type – WAS; Work-related injury claim
Case Name – Robert T. McBride vs. Cascade Construction and/or Workers’ Compensation Fund
Case Number – 050064
Court/Judge – Hann
Verdict /Settlement – Order, 04/06
Amount – The ALJ adopted the medical panel’s report and ruled that claimant suffered from a pre-existing injury which the industrial incident exacerbated. The ALJ ruled that claimant’s work activities leading up to the injury far exceeded any efforts in which a person might engage in everyday life and thus met the Allen test. Utah case law (Allen v. Industrial Commission) states that a previously injured worker seeking to qualify for benefits in connection with a work injury must prove that the work activities leading up to the work injury exceeded those a person might perform in everyday life, such as lifting a bag of groceries or a toddler, changing a tire, or taking a full garbage can out to the curb.
Because claimant proved medical causation and satisfied the Allen test, the ALJ ruled, his injuries were compensable. The ALJ therefore ordered employer/carrier to pay claimant’s related medical expenses, including those for recommended treatment of this injury in the future. Employer/carrier must also pay an add-on attorney’s fee directly to claimant’s attorney.
Injuries – Claimant suffered cervical spinal and shoulder injuries with radiculopathy. A cervical MRI revealed disc herniations at C5/6 and C6/7 with the left sides prominent and radial nerve impingement.
Attorney(s) - Plaintiff – Sandra N. Dredge of Dredge & Lallatin, Provo
Attorney(s) - Defense – Lori Hansen
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel chaired by Dr. Joseph Q. Jarvis–occupational medicine specialist; and including Dr. Elena James–neurologist.
Damages – Claimant sought medical expenses, money for recommended medical care and travel expenses incurred while seeking medical care.
Facts/Contentions – Claimant worked for employer as a framer. On his second day at work, he laid out the framing members of a garage so that a crane due to arrive later that morning could lift the pieces into place. The crane arrived, and claimant was standing on a 2 x 4 of the garage walls, guiding the trusses into place. The crane lifted a girder truss with 6 to 8 roof jacks attached to it, weighing about 600 pounds, and set it in place, but it was about one inch out of alignment. At the hearing on his case, claimant said he put a supporting hand on another roof jack and with his other hand gave the misaligned truss a “whipping jerk,” where he twisted and jerked at the same time, to try to reposition it. Claimant said the truss did not move, but claimant felt a pop in his neck, and his arm went dead. He had to use a hammer instead of a nail gun to finish securing the trusses, and fell behind in his work. At that point he reported the incident. He left work immediately after finishing the tasks that needed to be done while the crane was onsite, and went directly to his chiropractor. He later went to a physician in the city where his family physician practiced. This doctor concluded that his back symptoms were caused by his work activities and referred him to two other physicians, who agreed. One of these doctors recommended right shoulder straightening, cervical epidural injections and possible surgery to repair the herniated discs. Claimant has not worked since he was injured and is currently engaged in vocational retraining to learn to make dental appliances.
Employer/carrier denied medical and legal causation and also denied that claimant was in the course and scope of his employment with employer when he was injured. Employer/carrier’s independent medical evaluation (IME) physician diagnosed pre-existing, non-industrial degenerative disease of the cervical spine with non-industrial radiculopathy.
The medical panel examined claimant, reviewed the records and concluded that there is a medical causal condition between the industrial injury and claimant’s cervical spinal condition. The panel agreed that all the treatment claimant had received to date had been medically necessary and that future treatment might well include surgery. The panel noted that although claimant obviously had a pre-existing cervical spinal condition, he did not previously have the radiculopathy or the severe symptoms he experienced after the industrial incident.

OCCUPATIONAL DISEASE CLAIM
Case Type – OD; Occupational disease claim
Case Name – James Dean Wall vs. Northwest Pipeline (self-insured)
Case Number – 050968
Court/Judge – Marlowe
Verdict /Settlement – Order, 04/06
Amount – The ALJ found that the same parties were involved in this claim and the previous two; the same issues were debated in the previous claim; and the ALJ in the original case issued a finding of fact which was not appealed. These three circumstances, ALJ Marlowe wrote, satisfied the three prongs of the law related to res judicata.
The ALJ concluded that this claim was barred by the doctrine of res judicata and by Utah law because it had already been adjudicated in the previous proceedings. The ALJ therefore dismissed this claim with prejudice. Injuries – Claimant suffered pulmonary and kidney problems (medical causation unproven), nervous problems, tremors and memory loss (medical causation disputed).
Attorney(s) - Plaintiff – Claimant was represented pro se.
Attorney(s) - Defense – Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Facts/Contentions – Claimant sought medical expenses and other benefits from self-insured employer, contending that he suffered lasting impairment after being exposed to various chemicals over a number of years in the course and scope of his employment.
Self-insured employer contended that this claim was barred under the doctrine of res judicata. The doctrine of res judicata, according to ALJ Marlowe’s opinion in this case, holds that a party cannot prosecute a claim that has already been adjudicated fully in a prior proceeding. Employer and ALJ both noted that claimant filed an earlier occupational disease claim against this employer in 2000, and the ALJ in that claim issued an order in 2002 dismissing the claim for lack of medical causation. Claimant did not appeal the order. Employer further pointed out that ALJ Marlowe dismissed a similar claim which claimant filed in 2004 on grounds that the issue had already been adjudicated. Claimant filed this claim in January of 2006.

AUTOMOBILE ACCIDENT
INJURY CLAIM
Case Type – AA, WA; work-related automobile accident claim
Case Name – (Name of case withheld)
Case Number – 050023
Court/Judge – Hann
Verdict /Settlement – Order, 04/06
Amount – The ALJ adopted the medical panel’s report and ruled that claimant proved she suffered a psychological injury to her right eye as a result of the industrial accident. The ALJ therefore ordered employer/carrier to pay claimant the lump sum of $1,872 in accrued permanent partial impairment compensation, 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 $120 per week in temporary total disability benefits, beginning on 04/30/04 and continuing until claimant stabilizes medically. Accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees as specified above, and attorney’s fees are to be deducted from the ongoing payments and sent directly to claimant’s attorney. Employer/carrier must also pay claimant’s related medical expenses, including those for medication and psychological treatment in connection with this injury. Injuries – Claimant suffered a concussion with post-concussive syndrome, cervical spinal injuries, headaches and right eye visual disturbance. The medical panel confirmed these findings and also diagnosed claimant with chronic adjustment disorder with anxiety and depression, behavioral reinforcement factors affecting the chronic headaches and right eye visual disturbances, and conversion disorder with sensory deficit (vision in the right eye). Claimant has an undisputed 5% whole-person impairment rating related to her cervical spinal injuries and headaches.
Attorney(s) - Plaintiff – Maximo R. Guerra
Attorney(s) - Defense – Larry R. White of Burbidge & White
Expert Witness(es) – Because of conflicting medical testimony, this case was referred to a medical panel chaired by Dr. Joseph Q. Jarvis–occupational medicine specialist; and including Scot W. Russell, PhD–clinical psychologist; and Dr. Greg Brinton–retinal specialist.
Damages – Claimant sought past medical expenses, money for recommended medical care, temporary total disability compensation for the time she was off work because of her industrial injury, and permanent partial compensation for her whole-person impairment.
Facts/Contentions – According to the ALJ’s findings of fact, claimant worked for employer as a pizza delivery driver. She was rear-ended when she stopped suddenly to avoid hitting the car in front of her. She was able to come to a complete stop before being hit and was wearing a seat-belt. Her vehicle was not pushed into the car in front of her. She did not lose consciousness at the scene and did not remember hitting her head.
However, she was unable to drive back to her workplace, so her manager drove her back to work, where she filled out some paperwork and went home. She was not able to get the contact lens out of her right eye. She was throwing up and seeing little white spots the next day, so she did not go in to work, but sought treatment at a local hospital emergency room. The doctors there took claimant off work for two days. She consulted another doctor when her eye symptoms worsened; they included severe photophobia and blurred vision, and right-sided face pain. Another physician diagnosed claimant with right-eye retinal tlangiectasias, OU, RPE changes and mild macular edema. This physician thought laser intervention might be indicated. Claimant suffered significant continuing visual deterioration, did not return to work, and was afraid to drive.
Employer/carrier denied that claimant’s right-eye condition was caused by the industrial automobile accident. Their independent medical evaluation (IME) physician, however, diagnosed claimant with probable post-traumatic head syndrome, mild depression and right-eye dysfunction, as well as probable musculoligamentous injuries to the cervical and lumbosacral spine. Another physician who did a neuro-ophthalmological evaluation diagnosed claimant with a right-sided macular abnormality. An MRI and an EEG were normal.
The medical panel examined claimant, reviewed the medical record and concluded that all of her injuries were medically causally related to the industrial accident. The medical panel found no evidence of physiologic or anatomic injury to the right eye; however, they opined, claimant suffered a psychological injury which is very real and which affects her vision in that eye. The panel found that claimant was not medically stable and is in need of additional treatment, including medication and psychological treatment.

FALL INJURY CLAIM
Case Type – WA, SF; Work-related slip/fall injury claim
Case Name – Kent D. Johnson vs. Nestle and/or ACE Insurance
Case Number – 041102
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 04/06
Amount – The ALJ found that a preponderance of the evidence in this case conflicted with claimant’s contention that he suffered an industrial accident. The ALJ therefore dismissed this claim with prejudice.
Injuries – Claimant suffered low back and right hip injuries and underwent a total right hip arthroplasty (replacement).
Attorney(s) - Plaintiff – Sandra N. Dredge of Dredge & Lallatin, Provo
Attorney(s) - Defense – Michael E. Dyer of Blackburn & Stoll
Expert Witness(es) - Defense – Dr. W. D. Wylie; Dr. Marc Penrod; Dr. Robert Jackson – claimant’s treating physicians
Damages – Claimant sought past medical expenses, temporary total disability benefits and travel expenses incurred while seeking medical care.
Facts/Contentions – Claimant worked for employer in production. At the hearing on his claim, he stated that he slipped on a wet plastic sheet at work and fell, landing on his right hip. He said he was embarrassed about the incident and immediately jumped to his feet after falling. He stated that he worked the remaining 11 hours in his shift and went home without reporting the injury to a supervisor, although he said he told a co-worker and the company nurse. Two days later, he drove to Washington state to visit friends, and when he returned to work, he told his supervisor that his back and hip were so sore he had to go home. He eventually underwent surgery.
Employer/carrier denied that claimant suffered an industrial accident. Employer/carrier also denied that an industrial incident, if it occurred, was the medical cause of claimant’s low back and right hip problems. Employer/carrier contended that claimant’s medical problems were pre-existing.
The medical record indicated that claimant had pre-existing conditions which caused substantial pain in his lower back and right hip, to the point where several of his physicians prescribed Lortab. The ALJ noted that claimant’s co-worker, who was stationed right next to him and whom he claimed to have told about the fall, did not see claimant fall and observed that claimant did not “act hurt” following the alleged incident. Company records did not show any visit by claimant to the company nurse on the day of his alleged injury.
Furthermore, the ALJ noted, as claimant was leaving for home following his trip to Washington, he passed his immediate supervisor in the hall leading to the parking lot. Claimant told the supervisor that his back hurt, but did not report an industrial accident and did not attribute his back pain to industrial causes. When claimant did consult the company nurse, her records showed, he could not recall the date of the alleged accident.

REPETITIVE OVERUSE/
OCCUPATIONAL DISEASE/
WORK INJURY CLAIM
Case Type – WA, SI, OD; Repetitive stress and/or occupational disease and/or work-related injury claims
Case Name – Leslie L. Owen vs. Wellington City and/or Workers’ Compensation Fund
Case Number – 050367
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 04/06
Amount – The ALJ found that claimant failed to file her claim within the 120-day period Utah law allows injured workers in which to seek relief for work-related injuries. The ALJ therefore dismissed this claim with prejudice.
Injuries – Claimant suffered right-shoulder pain.
Attorney(s) - Plaintiff – Claimant was represented pro se.
Attorney(s) - Defense – Lori Hansen
Damages – Claimant sought medical expenses, benefits for future recommended medical care, and temporary total disability compensation.
Facts/Contentions – Claimant performed maintenance work for employer. This work included vacuuming, cleaning three restrooms, cleaning walls, washing windows, and taking out the garbage. Her duties later expanded to include grounds-keeping, such as mowing the lawn, pulling weeds and running a string trimmer. Claimant contended that the repetitive nature of her job activities caused progressive right shoulder problems, which became so severe that she had to quit her job. At the hearing on her case, claimant stated that two weeks before she quit, she went to her supervisor and told him her right shoulder hurt. She did not state that she told her supervisor her shoulder hurt because of her work activities.
Employer/carrier denied that claimant suffered either an occupational disease or an industrial accident. Employer/carrier further contended that this claim was barred by statute because claimant failed to report the injury or disease within 180 days of its occurrence. Employer/carrier contended that claimant left her job voluntarily.
At the hearing on this case, claimant’s supervisor stated that claimant never told him she was experiencing shoulder pain. Claimant’s treating physician did not file a physician’s first report of injury until a year and two weeks after claimant quit her job for employer. The supervisor contended that this report was the first notice employer received of claimant’s contention that her work activities caused her right-shoulder problems.

PANEL SAYS WORKER NEEDS SURGERY FOR FALL INJURY
WA, SF; Work-related slip/fall injury claim
Rudy Benoit vs. Associated Food Stores; and/or Travelers Indemnity Company; Utah Labor Commission case number 050546; Judge Richard La Jeunesse
For claimant: York A. Major of Bertch Robson
For employer/carrier: Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Accident: Benoit was injured at work when he stumbled over a low-profile credenza and fell to the floor. The medical record showed he received medical treatment for low back pain some time before the industrial accident. Injury: An MRI taken after the accident revealed a left L3/4 herniation, a right L4/5 herniation and a chronic L5/S1 herniation. One month and two weeks after Benoit fell, a doctor gave him a spinal injection, and a month after that the doctor reported that Benoit was 100% better. Two months after the doctor reported that Benoit was cured, Benoit’s pain returned with no trauma to explain its onset. Two weeks after the pain returned, Benoit’s treating physician diagnosed an annular tear at the L3/4 disc and disc protrusions at L4/5 and L5/S1. The doctor related these injuries to the industrial fall.
Benoit’s pain worsened after he attended a business show with his new employer and again after he turned while going out the door to work and felt a pop in his low back. The treating physician took Benoit off work. A second MRI taken eleven months after the