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Industrial Reports
2007
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Donald Sevy vs. Garff Enterprises and/or Utah Property & Casualty Guaranty Fund
Case Number – 050823
Court/Judge –La Jeunesse
Verdict /Settlement –Order, 11/06
Amount – Split ruling: part in favor of employer/carrier; part in favor of worker. The ALJ adopted the medical panel’s report and ordered employer/carrier to pay for removal of the pedicle screws from claimant’s low back. Employer/carrier must also pay an add-on fee to claimant’s attorney. The ALJ found employer/carrier not liable for the recommended CT or the EMG.
Injuries – Claimant suffered a rupture of the annular ligament at L4/5, which caused extensive back pain over the months and years following the injury. He underwent an interbody fusion at L4/5 to repair his low-back injury in 2000. He did not do well following the surgery and was diagnosed with a failed fusion in June of 2001. He underwent surgery to place pedicle screws at L4/5 on both the right and left sides. Rods were also placed bilaterally. Claimant underwent a third surgery, this one a laminectomy, medial facetotomy at L5/S1 right and foraminotomy of the S1 nerve root, in December of 2002.
Attorney(s) - Plaintiff – John L. McCoy
Attorney(s) - Defense – Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Expert Witness(es) – Because of conflicting medical testimony, the ALJ referred the issues in dispute to a second medical panel chaired by Dr. Glenn Momberger-orthopedic surgeon.
Damages – Claimant sought benefits for past medical expenses, benefits for recommended medical care and permanent total disability benefits.
Facts/Contentions – Claimant was injured on December 2, 1995.. His case was adjudicated in a prior hearing before the Labor Commission, and the ALJ in that adjudication referred the case to a medical panel and awarded benefits to claimant.
Claimant’s pain did not go away following his surgeries, and he filed this claim for further benefits in 2005. The parties stipulated at a pre-hearing conference that claimant is permanently and totally disabled. Employer/carrier agreed to pay claimant $10,116.52 in permanent total disability benefits, which included accrued interest. Employer/carrier agreed to pay claimant $365 per week less 50% of his present Social Security retirement benefits (currently $1,501 per month before reduction), beginning 6/8/06.
The parties disagreed on the issue of whether claimant needs a CT scan and an EMG for his low back injuries and also over whether he should have the pedicle screws removed. Claimant’s and employer/carrier’s physicians provided opposing opinions on these questions.
The medical panel examined claimant, reviewed his medical records and concluded that the removal of the pedicle screws was reasonable and necessary to treat claimant’s industrial injury, but the CT and EMG were not.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Bobby Anderton vs. Flying V Ranch and/or Workers’ Compensation Fund
Case Number – 2002620
Court/Judge – Southern Utah Adjudication Office/Sessions
Verdict /Settlement – Order, 11/06
Amount – Split ruling; part in favor of worker, part in favor of employer. The ALJ adopted the medical panel’s report and concluded that claimant met his burden of proof with respect to both legal and medical causation. With respect to legal causation, the AlJ found that because claimant had a prior lower-back injury, he had to meet the Allen test. In Allen v. Industrial Commission, the Utah Supreme Court ruled that a previously injured worker seeking compensation for a re-injury must prove that the work activities leading up to the injury exceeded those a person might encounter in everyday life. The ALJ ruled in this case that the activity of lifting two five-gallon gas cans filled with fuel and bending and/or twisting to get them into the back of a truck satisfied the requirements of the Allen test.
With respect to the claim of permanent total disability, the ALJ found that claimant was medically stable and the results of an EMG were within normal parameters. The ALJ further noted that no physician ever imposed work restrictions on claimant. The ALJ therefore found that claimant is not permanently and totally disabled and dismissed this claim with prejudice.
Because employer/carrier’s attorney promised at the hearing on this claim to make sure employer/carrier paid claimant permanent partial disability benefits he was owed for his additional 3% industrially related whole-person impairment, the ALJ did not make these benefits part of this order. However, the ALJ added, if the benefits are not paid, claimant may petition the ALJ to amend this order to include these benefits.
The ALJ ordered employer/carrier to pay claimant $11,570.68 in accrued temporary total disability benefits for the time period running from the date of his injury through the date when he reached medical stability. Employer/carrier must also pay all of claimant’s related medical expenses, including the costs of the pain management treatment. Because neither side presented evidence regarding expenses incurred while traveling to seek medical care, the ALJ did not award travel expense benefits. 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. Attorney’s fees shall include 20'% of all accrued interest.
Injuries – Claimant suffered three herniated discs in his lower back.
Attorney(s) - Plaintiff – Michael R. Labrum, Richfield
Attorney(s) - Defense – Hans M. Scheffler
Expert Witness(es) – Because of conflicting medical testimony, the ALJ referred this case to a medical panel composed of Dr. Ross McNaught and Dr. Randy Delcore.
Damages – Claimant sought benefits for past medical expenses and recommended medical care, temporary total disability benefits, additional permanent partial disability benefits, permanent total disability benefits and benefits for expenses incurred while traveling to seek medical treatment. Employer/carrier paid permanent partial disability benefits for a 7% industrially related whole-person impairment.
Facts/Contentions – Claimant was lifting two full five-gallon gas cans into the back of a truck. While lifting the second can, claimant experienced sudden lower-back pain which was so severe that it made him sick to his stomach. At the hearing on this claim, he stated that his treating physician told him not to return to work, and he followed that advice. However, that physician moved out of the state in 2000, and claimant began pain management treatment with his family physician. The family doctor told claimant that he (the family doctor) was not qualified to issue restrictions for claimant’s industrial industries and referred claimant to another doctor, but when claimant found that the Office of Rehabilitation would not pay for the examination, claimant did not go to see the other doctor and simply continued the pain management treatment with his family doctor. Claimant said that his back goes out sometimes when he bends over to tie his shoes and also at other times if he bends wrong.
Employer/carrier accepted liability for the accident and paid benefits, but the parties disagreed over the questions of whether/when claimant reached medical stability, whether claimant was ever temporarily totally disabled, and the extent of claimant’s permanent partial disability.
The medical panel examined claimant, reviewed his medical records and concluded that claimant suffered a 10% industrially related whole-person impairment in the industrial accident. The panel found that claimant was temporarily totally disabled until he stabilized medically 44.2 weeks after he was injured. The panel did not issue any work restrictions.
CLAIM FOR WORK INJURIES
Case Type – WA; Claim for injuries from work-related accidents
Case Name – Travis D. Riffle vs. Union Drilling, Incorporated and/or American Home Assurance Company
Case Number – 060408
Court/Judge – Lima
Verdict /Settlement – Order, 11/06
Amount – Ruling in favor of employer/carrier. The ALJ concluded that since no physician ever concluded that claimant’s cervical spinal condition and his upper right extremity condition were caused by his industrial accident, claimant failed to prove medical causation. The ALJ therefore dismissed the claims for benefits arising from both injuries with prejudice.
Injuries – Claimant suffered right forearm injuries which were not disputed. He also suffered right upper-arm and cervical spinal injuries which were disputed. An MRI revealed a paramedian right bulge at C2/3, a central paramedian right disc herniation at C3/4, a broad-based disc bulge at C4/5, and disc bulges at C5/6 and C6/7. Claimant underwent an anterior cervical discectomy and fusion at C3/4.
Attorney(s) - Plaintiff – Luke A. Brennan, Grand Junction, Colorado
Attorney(s) - Defense – David H. Tolk of Richards, Brandt, Miller & Nelson
Expert Witness(es) - Plaintiff – Dr. Robert Kloeppner–treating physician
Expert Witness(es) - Defense – Dr. Richard Knoebel–independent medical evaluation (IME) physician
Damages – Claimant sought benefits for medical expenses, temporary total disability benefits and back pay.
Facts/Contentions – After claimant was injured in an industrial accident, employer/carrier accepted liability and paid benefits for his right forearm injury. When he began experiencing right upper-arm and neck pain, employer/carrier denied benefits, claiming these symptoms did not result from the industrial accident.
Dr. Knoebel could not see a reason for claimant’s continuing neck pain. Dr. Kloeppner also opined that claimant could return to work. Neither physician imposed work restrictions, and no physician ever delivered a formal opinion stating that claimant’s right upper-arm and cervical spinal problems stemmed from his industrial accident.
REIMBURSEMENT DISPUTE
Case Type – MS; Miscellaneous (reimbursement dispute)
Case Name – Working RX; and Mark Lobacz vs. Loma Systems and/or Hartford Casualty Insurance Company
Case Number – 060941
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 11/06
Amount – Ruling in favor of applicant Working RX. The ALJ ordered employer/carrier to reimburse Working RX the $5.77 in prescription costs.
Attorney(s) - Plaintiff – None listed
Attorney(s) - Defense – None listed
Facts/Contentions – After Mark Lobacz was injured in an industrial accident and treated by Working RX, Working RX asked Hartford, as employer’s carrier, to reimburse Working RX for $5.77 in prescription costs in connection with the treatment. Hartford did not reply, and Working RX filed this application for reimbursement.
When the Labor Commission notified Hartford that adjudicative proceedings had commenced, Hartford did not respond within the 30 days allowed by law. Hartford also did not appear at the hearing on this matter. The ALJ therefore found Hartford to be in default on this claim.
SLIP INJURY CLAIM
Case Type – WA, SF; Work-related slip injury claim
Case Name – Roxanna Draper vs. Harts and/or Workers’ Compensation Fund
Case Number – 041157
Court/Judge – Southern Utah Adjudication Office/Sessions
Verdict /Settlement – Order, 11/06
Amount – Ruling in favor of worker. The ALJ adopted the medical panel’s report and ruled that claimant met her burden of proof with respect to legal and medical causation. With respect to legal causation, the ALJ found that because claimant had a prior knee injury, she had to meet the Allen test. In Allen v. Industrial Commission, the Utah Supreme Court ruled that a previously injured worker seeking compensation for a re-injury or aggravation must prove that the work activities leading up to the injury exceeded those a person might encounter in everyday life. The ALJ ruled in this case that the activity of slipping off a step constituted a true accident and therefore was not an everyday activity; the ALJ therefore ruled that claimant satisfied the Allen test.
The ALJ ordered employer/carrier to pay claimant $9,119.52 in accrued temporary total disability benefits for the time period running from the date of her injury through the date when she reached medical stability. With a $3,528.00 credit given for benefits already paid, the remaining amount due is $5,591.52. Employer/carrier must also pay claimant $2,159.04 in permanent total disability benefits for her 4% industrially related whole-person impairment. The ALJ ordered employer/carrier to pay claimant’s medical expenses, with credit given for the $2,420.27 in medical benefits they have 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. Attorney’s fees shall include 20% of the accrued interest on these awards.
Injuries – Claimant suffered a right knee injury and underwent a right arthroscopy with meniscectomy and chondroplasty.
Attorney(s) - Plaintiff – Aaron J. Prisbrey, St. George
Attorney(s) - Defense – Stephen H. Urquhart of Thompson, Awerkamp & Urquhart, St. George
Expert Witness(es) - Plaintiff – Because of conflicting medical testimony, the ALJ referred this case to a medical panel.
Damages – Claimant sought benefits for past medical expenses and recommended medical care, temporary total disability benefits and permanent partial disability benefits. Employer/carrier paid $3,528.00 in temporary total disability benefits and $2,420.27 in benefits for past medical expenses.
Facts/Contentions – Claimant slipped off a step while working at Hart’s gas station in St. George, injuring her knee.
Employer/carrier accepted liability and paid benefits, but disputed the necessity of the knee surgery claimant underwent. Employer/carrier contended that the need for the knee surgery stemmed from a prior right knee injury, noting that claimant had undergone a prior surgery on her right knee.
The medical panel examined claimant, reviewed her medical records and concluded that claimant’s right knee injury was medically causally related to her industrial accident. The panel felt that the treatment claimant received for her injury, including the surgery, was medically appropriate. The panel opined that claimant stabilized medically from her industrial injury 51.5 weeks after it occurred. The panel rated claimant’s whole-person impairment from this accident at 4%, all of it industrially related.
CLAIM FOR WORK INJURIES
Case Type – WA, TA; Work-related injury claim, work-related truck accident
Case Name –(Name of case withheld)
Case Number – 2003894
Court/Judge – Marlowe
Verdict /Settlement – Order, 12/-6
Amount – Split ruling: part in favor of employer; part in favor of worker. The ALJ adopted the medical panel’s report and ruled that claimant suffered an aggravation of his pre-existing chronic right-shoulder and cervical osteoarthritis in the industrial truck accident. The ALJ also found that claimant’s anxiety and depression were caused by the industrial truck accident. However, the ALJ ruled, claimant’s stroke and neurological deficits were not caused by the industrial truck accident.
The ALJ ordered Parsons and Liberty Mutual to pay claimant $3,522.94 in permanent partial disability benefits for his 3.2% industrially related whole-person impairment rating. Parsons/Liberty Mutual must also pay claimant’s related medical expenses. Accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from these awards and paid directly to claimant’s attorney.
Injuries – Claimant suffered bilateral rotator cuff tears, neck and shoulder injuries, and a stroke (causation disputed). He underwent extensive physical therapy and then two arthroscopic debridements, a right carpal tunnel release and a right rotator cuff repair, in addition to another surgical procedure to clean out a staff infection. He then underwent a further rotator cuff repair with removal of scar tissue. The medical panel estimated claimant’s whole-person impairment rating to be 16%, with 20% of that impairment, or 3.2%, related to the industrial truck accident.
Attorney(s) - Plaintiff – Wayne A. Freestone
Attorney(s) - Defense – For Smoot Brothers: Eugene C. Miller Jr.; for Parsons and Liberty Mutual: Bret A. Gardner of Blackburn & Stoll
Expert Witness(es) – Because of conflicting medical testimony, the ALJ referred this case to a medical panel.
Facts/Contentions – Claimant first filed a claim for benefits from Smoot Brothers, insured by the Workers’ Compensation Fund, claiming he suffered right and left rotator cuff tears which were caused by his work activities of pulling straps to tie down loads on a flatbed semi-trailer. During a break at the hearing on the claim, the parties agreed on a settlement, and the ALJ approved the settlement and dismissed the claim.
Claimant then filed this claim against Parsons, his previous employer, claiming left- and right-shoulder injuries and neck injuries caused by a dump-truck accident in which claimant’s dump-truck was broadsided by the rear of a 30-ton loader. At the time of the collision, claimant had taken off his seat-belt to lean over and pick up some papers which had fallen to the floor. His head and right shoulder slammed into the dashboard, and he thought he might have lost consciousness briefly. He reported the accident to his employer, who asked if he could still drive the truck from Salt Lake to Brigham City. Claimant drove the truck to Brigham City on back roads and then sought treatment in a Brigham City hospital emergency room.
Claimant started not being able to taste food shortly after the accident, and sought further treatment for this problem. He claimed his neurological problems later grew to include impotence; mild incontinence; weakness, numbness and tremors in his arms; problems with balance; and anxiety disorder. He contended that the collision caused him to suffer a stroke with resulting neurological deficits and sensory loss.
Parsons and its carrier admitted that claimant suffered a right-shoulder injury, but denied liability for the rest of claimant’s health conditions, claiming they were medically causally unrelated to the industrial truck accident. Parsons/carrier noted that diagnostic images showed significant degenerative, non-industrial changes in claimant’s shoulders and neck. Parsons/carrier noted that claimant had a medical history of non-industrial mini-strokes. Parsons/carrier also pointed out that claimant also had problems with drug abuse and suffered from major clinical depression. Claimant contended that the depression was caused by the industrial truck accident. The depression and his ongoing pain, claimant stated, caused him to self-medicate and led directly to his substance abuse problems.
Parsons/carrier produced a surveillance video which showed claimant engaging in various everyday activities with no tremors and no sign of pain or balance problems. However, another surveillance tape made on a different day showed claimant sitting in a chair on the porch, exhibiting noticeable tremors. The ALJ noted that claimant suffered from marked tremors at the hearing on this claim.
The medical panel examined claimant, reviewed his records and concluded that 25% of his his neck and shoulder problems were caused by the industrial truck accident. However, the panel could not find a medical causal link between claimant’s industrial truck accident and his stroke/neurological problems. The panel found that claimant’s anxiety and major depression were caused by the industrial truck accident.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Patty A. Coones vs. Shopko; and Liberty Mutual Insurance
Case Number – 20011288
Court/Judge – Poelman; then Marlowe
Verdict /Settlement – Order, 12/06
Amount – Ruling in favor of worker. The ALJ adopted the medical panel’s report and ruled that claimant met her burden of proof with respect to both medical and legal causation. The ALJ therefore ordered employer/carrier to pay claimant $23,360 in accrued temporary total disability benefits for the time period running from the date of her injury until she stabilized medically. Employer/carrier must also pay claimant $3,494.40 for her industrially related permanent whole-person impairment. The ALJ ordered employer/carrier to pay claimant’s related medical expenses, including the costs of her surgeries. 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. Attorney’s fees are to include 20% of the interest on these awards.
Injuries – Claimant suffered a low-back injury. She underwent physical therapy and chiropractic treatment. An MRI revealed a paracentral disc herniation at L4/5, abutting both L5 nerve-roots against the facet joints. Claimant underwent a rhizotomy (surgical cutting of the nerve roots) and then a decompression and fusion at L4/5. She later underwent another surgery, and reported that she no longer had pain in her legs following this surgery.
Attorney(s) - Plaintiff – Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense – Mark D. Dean of Blackburn & Stoll
Expert Witness(es) – The parties agreed to waive a hearing on this claim and refer the matter directly to a medical panel composed of Dr. Glenn Momberger–chair; and Dr. Owen Smoot.
Damages – Claimant sought benefits for past medical expenses and permanent partial disability benefits.
Facts/Contentions – Claimant was loading a boxed wood-and-metal bed-frame onto a dolly. The box weighed over 100 pounds. Claimant was bent over, trying to push the box, which was leaning against a wall, onto the dolly when she felt a burning pain in her back that extended into her right leg. She sought treatment two weeks later when her pain did not abate.
Employer/carrier contended that claimant’s back injuries were degenerative, pre-existing and non-industrial in nature. Employer/carrier also disputed claimant’s need for the surgeries.
The medical panel examined claimed, reviewed her records and concluded that claimant did not stabilize completely from her industrial injury until five years and four months after it occurred. The panel felt that all of the treatment claimant received for her industrial injuries was reasonable and necessary, since claimant derived relief from the surgeries. The panel did not find any evidence of a pre-existing condition. The panel estimated claimant’s whole-person impairment at 7%, all industrially related.
CLAIM FOR INDUSTRIAL INJURIES
Case Type – WA; Work-related injury claims
Case Name –Karen Stone vs. Warehouse and Demo Services; Workers’ Compensation Funhd; and Alaska National Insurance Company
Case Number – 040602
Court/Judge – Marlowe
Verdict /Settlement – Order, 12/07
Amount – Ruling in favor of employer/carrier. The ALJ ruled that claimant failed to meet her burden of proof with respect to legal causation (see Allen test, below). The ALJ therefore dismissed this claim with prejudice.
Injuries – Claimant suffered a low-back injury. An MRI taken after the first accident showed annular tears at L4/5 and L5/S1 and a small central disc herniation at L5/S1.
Attorney(s) - Plaintiff – Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense – Hans Scheffler
Expert Witness(es) - Plaintiff – Dr. Timothy Grange; Dr. Lynn Webster
Expert Witness(es) - Defense – Dr. Robert Hood; Dr. Jeff Chung; Dr. Mark Passey
Damages – Employer/carrier paid $24,374.47 in medical expenses and $19,320 in temporary total disability benefits for the time claimant was off work following the first accident.
Facts/Contentions – In the first industrial accident, claimant was getting a 20-pound box of burritos down from a high shelf in the freezer. She stated that she stood on a cement riser eight to 12 inches high in order to reach the box. As she stepped down, she twisted to the right and came down hard. She felt an immediate pop in her back. She sought medical treatment two days later when her pain did not abate.
Claimant stated that she was doing light-duty work when she was “tapped” on her right side by a Costco electric cart. She said the woman driving the cart did not stop, but claimant fell forward, landing on and injuring her hands and knees and tearing her pant-legs. Claimant reported the incident to her supervisor, who searched the store but was unable to locate anyone driving a cart. An employee stationed near where both of the carts were stored said no one had used either of them at all that afternoon.
Employer/carrier at first accepted liability and paid benefits, but then declined to pay further, contending that diagnostic imaging revealed degenerative changes in claimant’s lumbar spine. Employer/carrier therefore contended that claimant should be required to satisfy the Allen test for legal causation with respect to the first accident. In Allen v. Labor Commission, the Utah Supreme Court ruled that a previously injured worker seeking benefits for a re-injury or aggravation must prove that the work activities leading up to the injury or aggravation exceeded those a person might encounter in everyday life. Employer/carrier contended that claimant’s work activities leading up to her injury were not extraordinary and therefore did not satisfy the Allen test.
Regarding the second incident, employer/carrier said they were unable to find any evidence that it occurred.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Timothy Vicencio vs. T S Construction; and/or Workers’ Compensation Fund
Case Number – 060014
Court/Judge – Sessions. This case came through the Labor Commission’s Southern Utah Adjudication Office.
Verdict /Settlement – Order, 12/07
Amount – Ruling in favor of employer/carrier. The ALJ adopted the medical panel’s report and ruled that claimant failed to prove the disputed medical procedures were reasonable and necessary treatments for his industrial injury. The ALJ therefore dismissed this claim with prejudice.
Injuries – Claimant suffered a low-back injury.
Attorney(s) - Plaintiff – Aaron J. Prisbrey, St. George
Attorney(s) - Defense – Stephen H. Urquhart of Thompson, Awerkamp & Urquhart, St. George
Expert Witness(es) – The parties agreed by stipulation to waive their right to a hearing and refer the matters at issue directly to a medical panel. Panel members included Dr. Alvin Wirthlin–chair; and Dr. Glenn L. Momberger.
Damages – Claimant sought benefits for past medical expenses and future medical care, in addition to an add-on attorney’s fee.
Facts/Contentions – Claimant stated in his application for benefits that he was injured in an industrial accident on 07/25/98. He claimed he needed an MRI and steroid injections to treat his industrial injury.
Employer/carrier did not dispute that the accident occurred and did not dispute that it was compensable. They did, however, dispute the medical necessity of the MRI that was performed and the steroid injections that were recommended by claimant’s treating physician.
The medical panel examined claimant, reviewed his medical records and concluded that the MRI and the steroid injections were not necessary to treat claimant’s industrial injury.
SLIP/FALL INJURY CLAIM
Case Type – WA, SF; Work-related slip/fall injury claim
Case Name – Tracy Graff vs. Domino’s (RJSS Corporation); and/or Workers’ Compensation Fund
Case Number – 060058
Court/Judge – Sessions. This case came through the Labor Commission’s Southern Utah Adjudication Office.
Verdict /Settlement – Order, 12/07
Amount – Ruling in favor of employer/carrier. The ALJ adopted the medical panel’s report and ruled that claimant failed to prove medical causation. The ALJ therefore dismissed this claim with prejudice.
Injuries – Claimant suffered cervical, thoracic and lumbar spinal injuries, with pain radiating down his left leg and arm.
Attorney(s) - Plaintiff – Rick D. Bonewell of Bonewell Morris & Associates, St. George
Attorney(s) - Defense – Stephen H. Urquhart of Thompson, Awerkamp & Urquhart, St. George
Expert Witness(es) – The parties agreed by stipulation to waive their right to a hearing and refer the matters at issue directly to a medical panel. Panel members included Dr. Alvin Wirthlin–chair; and Dr. Glenn L. Momberger.
Damages – Claimant sought benefits for medical expenses and recommended medical care, temporary total disability benefits and temporary partial disability benefits.
Facts/Contentions – Claimant was injured when he slipped and fell while delivering pizza for employer. He claimed the accident caused him to suffer periods of temporary total, temporary partial and permanent partial disability.
Employer/carrier disputed that the industrial accident caused claimant’s symptoms. Employer/carrier also disputed the various disability claims. The medical record showed that claimant had a prior lumbar spinal surgery two years before this accident, and employer/carrier contended that claimant suffered only a temporary aggravation of the prior injury that necessitated the earlier surgery.
The medical panel examined claimant, reviewed his medical records and concluded that claimant did not sustain any permanent injury or aggravation of a prior injury in his industrial slip/fall.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – McKay Dee Hospital; and Robert Lohoff vs. B & B Auto Repair; and/or Uninsured Employers’ Fund; and Betty May Haley
Case Number – 050050, 041184
Court/Judge – Sessions. This case came through the Labor Commission’s Southern Utah Adjudication Office.
Verdict /Settlement – Order, 12/07
Amount – Ruling in favor of employer/carrier/UEF. The ALJ noted that in most cases where a claimant fails to appear at a hearing on his or her claim, it is appropriate to dismiss the case without prejudice for failure to prosecute and give the claimant time to get organized and re-file. However, in this case, the ALJ noted, he gave the claimant “every opportunity” to proceed with its claims, but claimant failed to avail itself of those opportunities. “It appears,” the ALJ wrote in his opinion on the case, “that petitioner’s failure to attend was willful. Under such circumstances it is appropriate to dismiss the case with prejudice.” The ALJ therefore did so.
Attorney(s) - Plaintiff – Claimant, McKay Dee Hospital, was not present nor represented by its attorney, Douglas Turek of the Woodlands, Texas.
Attorney(s) - Defense – Respondents, B & B Auto Repair and Betty May Haley, were not present nor represented by their attorney, Sharon J. Eblen. The Uninsured Employers’ Fund was not present nor represented by an attorney.
Facts/Contentions – McKay Dee Hospital filed this claim to obtain reimbursement for medical expenses incurred by Robert Lohoff. In its claim, the hospital contended that Lohoff’s injuries were industrially related.
Employer/carrier denied the claim of industrial injury, arguing that Lohoff was using company facilities after hours to work on a friend’s car. Employer/carrier therefore denied liability.
The UEF contended that employer and its carrier were solvent and able to pay benefits; the UEF therefore claimed it did not belong in the case.
Evidentoary hearing on the matter and sent notice to all of the parties. On the day of the hearing, none of the parties appeared.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Kenneth D. Olsen vs. Owner Operator Resources Associated and/or Phoenix Fund
Case Number – 040968
Court/Judge – Sessions. This case came through the Labor Commission’s Southern Utah Adjudication Office.
Verdict /Settlement – Order, 12/07
Amount – Dismissal for lack of jurisdiction. The ALJ found that the wrong parties were named in this claim. The ALJ further concluded that the Labor Commission lacked jurisdiction to hear the case, since claimant acknowledged the jurisdiction of the State of North Carolina when he filed the first report of injury with the North Carolina Industrial Commission. The ALJ also noted that the Labor Commission’s brief does not include the power to decide civil claims of fraud. The ALJ therefore dismissed this case for lack of jurisdiction.
Attorney(s) - Plaintiff – Rick D. Bonewell of Bonewell Morris & Associates
Attorney(s) - Defense – Kenneth L. Reich of Snow, Christensen & Martineau
Facts/Contentions – Claimant filed an application for benefits in which he claimed that Andrus Trucking was his employer. He later filed an amended application for benefits in which he dropped the allegation that Andrus was his employer and instead claimed to work for respondent OORA. However, at the hearing on this claim, he asserted that Andrus was and had always been his employer. The ALJ therefore ruled that respondent OORA was not claimant’s employer, and the wrong parties were named in this case.
OORA filed a motion to dismiss, contending that it is merely an insurance company which does business only in North Carolina. The ALJ, acting on information received at the hearing, found that claimant maintained a home base in Utah and entered into a contract for insurance coverage with OORA. The ALJ found that Andrus provided loads and drove them into southern Utah, at which point claimant would take over and drive them to their destination. Claimant said he started at some point in Utah every week and then drove all over the country. He was not able to explain where his alleged injury took place. It finally presented while he was driving from Utah to New Jersey. However, claimant filed his first report of injury in North Carolina. He had previously been hospitalized with the same condition.
OORA’s attorney made a special and limited appearance in this case to contest the Labor Commission’s jurisdiction in the claim. OORA’s attorney further stated that as part of its defense, OORA would contend that claimant’s allegation of injury was fraudulent.
PERMANENT TOTAL DISABILITY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Michael L. Jeffries vs. Wasatch Tile and/or Workers’ Compensation Fund
Case Number – 050660
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 01/07
Amount – Ruling in favor of worker. The ALJ issued a final finding of permanent and total disability and ordered employer/carrier to pay claimant $478 per week in permanent total disability benefits, starting on January 31, 2003 and running for 312 weeks. After that time, these benefits shall be reduced by 50% of any Social Security retirement benefits claimant receives. Accrued benefits of $96,283.54 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 shall be entitled to a credit against the due and payable accrued lump-sum balance for any temporary total disability, temporary partial disability, permanent partial disability, or subsistence benefits they have already paid claimant.
Employer/carrier must also pay all of claimant’s related medical expenses.
Injuries – Claimant suffered serious injuries which left him permanently and totally disabled.
Attorney(s) - Plaintiff – Jay K. Barnes of the Myler Law Office
Attorney(s) - Defense – Eugene C. Miller Jr.
Facts/Contentions – After conducting a hearing on this claim, ALJ La Jeunesse issued a tentative finding of permanent and total disability. As required by Utah law, which makes the awarding of temporary total disability benefits a two-step process, Judge La Jeunesse gave employer/carrier 30 days after the date of the tentative ruling in which to submit a re-employment plan. When employer/carrier did not file a re-employment plan within the time allotted, Judge La Jeunesse issued this final order.
REPETITIVE MOTION STRESS INJURY
Case Type – WA, SI: Work-related repetitive motion stress injury
Case Name – Marsha Cook vs. State of Utah Courts and/or Workers’ Compensation Fund
Case Number – 051110
Court/Judge – Southern Utah Adjudication Office/Sessions
Verdict /Settlement – Order, 01/07
Amount – Ruling in favor of worker. ALJ Sessions found that claimant suffered a work-related injury and met her burden of proof with respect to the Allen test (see below). Although it is common to spend a lot of time on the phone in this day and age, the ALJ wrote in his opinion, it is still not a common non-employment experience to spend 80% of an 8-hour period talking on the phone while simultaneously typing on a computer.
The ALJ ordered employer/carrier to pay claimant $2,196 in accrued temporary total disability benefits and $14,365.91 in permanent partial disability benefits for her 14% industrially related whole-person impairment. 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. Employer/carrier must also pay all of claimant’s related medical expenses.
Injuries – Claimant suffered cervical spinal injuries and underwent vertebral fusion surgery.
Attorney(s) - Plaintiff – Aaron J. Prisbrey, St. George
Attorney(s) - Defense – Hans M. Scheffler
Expert Witness(es) - Plaintiff – Dr. Greg Last–treating physician
Expert Witness(es) - Defense – Dr. Bart Fotheringham–independent medical evaluation (IME) physician
Damages – Claimant sought medical expenses, temporary total disability benefits, permanent partial disability benefits and permanent total disability benefits. At the hearing on this case, claimant withdrew her claim for permanent total disability benefits on grounds that she is still working.
Facts/Contentions – Claimant worked and continues to work in the Fifth District Court, at the Washington County office in St. George. Her uncontested testimony at the hearing on her claim was that during the week of September 12, 2005, she experienced an unprecedented increase in activity at her job which required her to spend a significant amount of time on the phone. The increase occurred following a week in which all the Fifth District judges were out of town at a conference. Claimant estimated that during the week in which the increase occurred, she spent as much as 80% of her time at work on the phone. She stated that when she was on the phone, she would hold the telephone between her right shoulder and her ear by shrugging her shoulder up and tilting her head down so as to leave her hands free for typing on the computer. By September 14, she experienced pain that extended through her neck and down into her shoulder, and it became severe after claimant had been at work for four hours. Claimant told her employer about the pain and sought medical treatment.
Employer/carrier did not dispute claimant’s account. A supervisor who testified at the hearing said that 80% was probably a high estimate of claimant’s time on the phone, but the supervisor did not provide an alternate estimate, and no records existed to show the amount of phone use for any given week.
Employer/carrier contended that claimant’s medical records showed she had a pre-existing cervical spinal condition for which she had sought medical treatment as far back as 1998. Even if claimant did spend 80% of her work-time on the phone, employer/carrier argued, her work activities did not satisfy the Allen test. In Allen v. Industrial Commission, the Utah Supreme Court ruled that a previously injured worker seeking compensation for a re-injury or aggravation must prove that the work activities leading up to the injury exceeded those a person might encounter in everyday life. Employer/carrier argued that we live in an electronic age, where it is common for people to spend significant period of time on the phone each day. Employer/carrier contended that claimant’s work activities during the week in question did not constitute an extraordinary exertion.
Claimant’s treating physician opined that claimant’s most-recent cervical spinal problems requiring treatment were caused by her work activities.
Employer/carrier’s IME physician found that claimant sustained a 14% whole-person industrial impairment, all of which was caused by her work activities. Dr. Fotheringham was very specific about the activities that would have caused the radiculopathy and the pinching in claimant’s neck.
INDUSTRIAL MOTOR VEHICLE ACCIDENT CLAIM
Case Type – WA, AA, TA; Work-related automobile/pick-up truck accident injury claim
Case Name – Debbie R. Bennett vs. Biorem and/or Workers’ Compensation Fund
Case Number – 050800
Court/Judge – Marlowe
Verdict /Settlement – Order, 01/07
Amount – Split ruling: part in favor of worker; part in favor of employer. The ALJ adopted the medical panel’s report and ordered employer/carrier to pay claimant’s past medical expenses related to the industrial motor vehicle accident. The ALJ dismissed all of the other claims with prejudice.
Injuries – The medical panel examined claimant, reviewed her medical records and concluded that at most, claimant suffered a minor cervical strain in the accident which temporarily aggravated her pre-existing cervical degenerative disease, but did not cause any permanent impairment. The panel felt that the medical care claimant received following her injury was reasonable and necessary to treat the exacerbation of her pre-existing medical condition. However, because her level of use of pain medication did not change following the accident, the panel concluded that claimant’s use of this medication is related to her pre-existing condition. The panel concluded that claimant stabilized from the work-related temporary aggravation of her pre-existing medical condition five months after the accident.
Attorney(s) - Plaintiff – Daniel F. Bertch of Bertch Robson
Attorney(s) - Defense – Lisa Altman
Expert Witness(es) – Because of conflicting medical testimony, the ALJ referred this case to a medical panel composed of Dr. Joseph Q. Jarvis–chair; and Dr. Bruce Newton.
Damages – Claimant sought benefits for past medical expenses and future recommended medical care, temporary total disability benefits and permanent partial disability benefits for permanent impairment.
Facts/Contentions – The parties agreed that claimant was involved in a work-related accident in which she drove her Toyota Camry into the back of a moving Ford F-150 pick-up truck. Claimant’s airbag did not deploy, although the investigating Highway Patrol officer estimated that both vehicles were going over 70 miles per hour at the time of the accident. Claimant has no memory of the accident.
The parties disagreed over the degree of injury claimant suffered in the accident.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Leticia Arreola vs. Dress Barn and/or Liberty Mutual Insurance Company
Case Number – 060175
Court/Judge – Trayner
Verdict /Settlement – Order, 01/07
Amount – Split ruling: part in favor of worker; part in favor of employer. The ALJ adopted the medical panel’s report and ordered employer/carrier to pay claimant’s past medical expenses related to her industrial accident, as well as future medical expenses for the treatments recommended by the medical panel. The ALJ dismissed the claim for additional permanent partial disability benefits and the claim for benefits to pay for possible surgery with prejudice.
Injuries – Claimant suffered lumbosacral spinal injuries which left her with persisting radicular neurologic deficits in her lower right leg. She underwent two-level endoscopic discectomies.
Attorney(s) - Plaintiff – Kevin K. Robson of Bertch Robson
Attorney(s) - Defense – Kristy L. Bertelsen of Blackburn & Stoll
Expert Witness(es) – Because of conflicting medical testimony, the parties agreed to waive a hearing, and the ALJ referred this case directly to a medical panel chaired by Dr. Alan J. Goldman.
Damages – Claimant sought benefits for past medical expenses and future recommended medical care, as well as additional permanent partial disability benefits for permanent impairment.
Facts/Contentions – The parties agreed that claimant suffered an industrial accident. However, they disagreed about the amount of permanent impairment the accident caused and the type of medical treatment claimant needs. Before the case went to the medical panel, employer/carrier paid claimant for a 3% industrially related whole-person impairment, basing the payment on the findings of their independent medical evaluation (IME) physician.
The medical panel examined claimant, reviewed her records and concluded that the 3% industrially related whole-person impairment rating awarded by the IME physician was accurate. With respect to recommended future medical treatment, the panel felt claimant would benefit from a true back rehabilitation and body mechanics protocol with stretching, flexion, extension, and graduated strengthening exercises in association with hot moist packs, massage, ultrasound, and possibly a TENS unit over a four- to six-week period of time. The panel recommended over-the-counter or prescription anti-inflammatory and/or pain medication or perhaps a re-institution of Neurontin. If these procedures do not prove beneficial, the panel felt that an EMG of the lumbosacral paraspinal muscles and selected muscles of the lower right leg, as well as a follow-up MRI of the lumbosacral spine with and without contrast, would be beneficial. Based on the diagnostic findings at that time, the panel concluded that a selective right S1 nerve-root injection might be undertaken. The panel hesitated to recommend further open or endoscopic surgical procedures.
MEDICAL REIMBURSEMENT CLAIM
Case Type – WA, RE; Medical reimbursement claim for work-related injury
Case Name – Working Rx; and Mellissa Therrien vs. Inline Plastics; and/or Twin City Fire Insurance Company
Case Number – 060968
Court/Judge – Trayner
Verdict /Settlement – Order, 01/07
Amount – Ruling in favor of medical provider. When employer/carrier failed to answer this claim or appear at the hearing on it, the ALJ declared employer/carrier to be in default. The ALJ ordered employer/carrier to pay Working Rx $6.06 for prescription medications supplied to the injured worker.
Injuries – The injured worker suffered unspecified injuries.
Attorney(s) - Plaintiff – Working RX filed its own claim for reimbursement.
Attorney(s) - Defense – Employer/carrier did not answer the claim or appear at the hearing.
Facts/Contentions – Medical provider Working Rx sought reimbursement of $6.06 for prescription medications Working Rx supplied to injured worker Therrien in connection with an injury she suffered while working for Inline Plastics.
OCCUPATIONAL DISEASE CLAIM
Case Type – OD; Occupational disease claim
Case Name – (Name of case withheld)
Case Number – 060240
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 01/07
Amount – Ruling in favor of worker. The ALJ found claimant contracted viral meningitis as a result of her work activities and later suffered a hypoxic incident which caused post-traumatic stress disorder and affective/cognitive deficits. The ALJ ordered employer/carrier to pay claimant $4,712.40 in accrued temporary total disability benefits, and to continue to pay her ongoing temporary total disability benefits of $340 per week until she stabilizes medically, or employer/carrier has paid 312 weeks of benefits, or claimant returns to full-time work.
Employer/carrier must also pay claimant’s related past and future medical expenses. 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 developed meningitis. A meningitis-related oxygen-deprivation incident left claimant with post-traumatic stress disorder which caused severe anxiety, depression, insomnia and cognitive deficits.
Attorney(s) - Plaintiff – K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense – Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) - Plaintiff – Dr. Berry–primary care physician; Dr. Stuart King; Dr. Christopher Reynolds–neurological consult; Douglas Ross, MD–pulmonologist; David Seamons, PhD; Dr. Richard Arborn; Valton King, DO
Expert Witness(es) - Defense – Dr. Jeff Chung–independent medical evaluation (IME) physician; Erin Bigler, PhD–neuropsychological evaluation; John Knippa, MD–IME physician. Employer/carrier sought to submit a third IME report from Dr. Gerald Moress, but the ALJ declined to accept it as it was not timely filed and claimant had no opportunity to respond to it.
Damages – Claimant sought benefits for past medical expenses and future recommended medical care, as well as permanent partial disability benefits and permanent total disability benefits. Employer/carrier paid benefits through 6/01/06.
Facts/Contentions – Claimant worked as a registered nurse in the labor and delivery department of employer’s hospital. On 8/19/02 claimant was working as a post-partum nurse, caring for a new mother and her baby. The mother complained of a headache, and began spiking a fever, shaking and vomiting. Claimant donned gloves and gave the mother a basin to vomit into, but the mother missed the basin and vomited onto claimant’s bare arm. Claimant washed her arm off, finished her charting and went home.
Claimant returned to the hospital two days later, and her co-workers told her the new mother had been admitted to the intensive care unit with meningitis. Two days later claimant began feeling ill. She called in sick the day after that, and when she told her supervisor that her symptoms included headache, backache and overall body aches, the supervisor told claimant to come to the hospital emergency room immediately. At the ER, the doctor performed tests, including a spinal tap, gave claimant antibiotics and sent her home. As her symptoms worsened over the next three days, the headache grew severe enough to cause claimant to begin posturing, and she was unable to sit up. Claimant returned to the ER, underwent another spinal tap and was admitted to the ICU on 8/29/02. The staff placed her on a self-dosing morphine drip, and claimant overdosed and went into respiratory arrest. The staff resuscitated her, but after her release from the hospital, claimant experienced problems with driving, anxiety, fear of being left alone, nervousness, crying bouts, forgetfulness, depression, irritability and insomnia. Following her spinal taps and blood patches, claimant suffered chronic back pain and headaches. Claimant tried to return to work for two days in November of 2002, but was unable to continue and did not return to work after that date. Employer officially terminated her on 10/22/04.
Claimant was not initially diagnosed with meningitis because her test results were unclear. However, none of the ER doctors ruled out meningitis.
Employer/carrier denied liability, contending that nothing in claimant’s work activities caused her medical problems. Claimant’s physicians and employer/carrier’s IME physicians and neuropsychological experts all agreed that claimant suffered industrially related traumatic brain injury and post-traumatic stress disorder caused by hypoxic (oxygen deprivation) incident secondary to acute viral meningitis. Dr. Seamons estimated that she would require at least another 60 visits before she would stabilize psychologically.
At the hearing on this claim, the parties agreed by stipulation to dismiss without prejudice the claims for permanent partial and permanent total disability benefits, as claimant is not yet medically stable. She can now only sit for 15 minutes at a time without rest, stand for 5 minutes at a time and walk two or three city blocks. She must change positions frequently to minimize pain and requires frequent unscheduled rest periods during the day.
Legal Issues – Employer/carrier objected to claimant’s statement of intent to introduce the new mother’s medical records. Employer/carrier claimed that the new mother’s diagnosis of meningitis constituted a hearsay finding and should be barred by law. The ALJ noted in his opinion on the claim that statements for purposes of medical diagnosis or treatment constitute an exception to the hearsay rule under Utah law. The ALJ therefore ruled that the records were admissible.
CLAIM FOR WORK-RELATED INJURIES
Case Type – WA, OD; Claims for work-related injuries, occupational disease claim
Case Name – Russell B. Davis vs. Kennecott Holding Corporation (self-insured)
Case Number – 040949
Court/Judge – Southern Utah Adjudication Office/Sessions
Verdict /Settlement – Order, 01/07
Amount – Ruling in favor of employer. The ALJ adopted the medical panel’s conclusions and ruled that claimant failed to meet his burden of proof with respect to medical causation. The ALJ therefore dismissed all of these claims with prejudice.
Injuries – Claimant suffered cervical and lumbar spinal injuries. He underwent lumbar surgery, a cervical discectomy and fusion, a decompressive laminectomy at L4/5, and a discectomy at L5/S1. Regarding the claim of occupational disease, he was diagnosed with bilateral diffuse bronchiectasis throughout the lungs but most prominent in the right lower lobe (causation disputed). His physicians also diagnosed interstitial pulmonary fibrosis, chronic obstructive pulmonary disease, chronic bronchitis and pulmonary artery hypertension (causation disputed).
Attorney(s) - Plaintiff – Aaron J. Prisbrey, St. George
Attorney(s) - Defense – Kristine M. Larsen of Ray, Quinney & Nebeker
Expert Witness(es) – Because of conflicts in the medical testimony, the parties agreed to waive a hearing on this claim, and ALJ Sessions referred this case directly to a medical panel chaired by Dr. Scott M. Smith.
Damages – Claimant sought future medical benefits to pay for a recommended hospital bed and therapeutic hot tub; future medical benefits to pay for prescription medications, including narcotic medications; and future medical benefits to pay for future recommended pulmonary care.
Facts/Contentions – Claimant, now 70 years old, worked for self-insured employer as a boilermaker and welder. He suffered a spinal crush injury in 1969 when a heavy object fell on him from above, causing a hyper-flexion injury of his neck and low back. He injured his back again in 1984 while working on Kennecott’s White River construction project. In a previous hearing, an ALJ awarded him permanent total disability benefits and ordered Kennecott to pay all of his related medical expenses. After employer paid benefits for 212.16 weeks, the Employers’ Reinsurance Fund took over and paid claimant’s permanent total disability benefits, which are ongoing.
When claimant’s back pain continued and worsened, his doctors recommended a hospital bed and therapeutic hot tub, as well as several prescription medications, including narcotics. Self-insured employer disputed the necessity for all of these measures to treat claimant’s industrial injuries. Employer contended that claimant suffers from non-industrial degenerative spinal disease and the recommended measures are needed to treat his non-industrial degenerative-disease-related symptoms, not his industrial injuries.
Claimant filed an occupational disease claim, contending that he was exposed to asbestos, dirt, dust, chemicals and arsenic gases while working at Kennecott. Kennecott disputed this claim, arguing that claimant wore heavy protective gear such as a full-face double-mask respirator at all times and places where he might have suffered such exposure.
The dispute between the parties boiled down to six questions: 1) whether the hospital bed and therapeutic hot tub were medically necessary to treat claimant’s industrial spinal injuries; 2) whether the past medical treatment claimant received was medically necessary to treat claimant’s industrial spinal injuries; 3) whether the narcotic medications were medically necessary to treat claimant’s industrial spinal injuries; 4) whether claimant’s pulmonary condition was medically caused by his work activities at Kennecott; 5) whether the pulmonary medical treatment claimant received was medically necessary to treat claimant’s industrial pulmonary injuries; and 6) what future medical care would be required to treat claimant’s pulmonary condition as a result of his work at Kennecott.
The medical panel examined claimant, reviewed his medical records and diagnostic studies, and returned the following answers: 1) the hospital bed and therapeutic hot tub were not medically necessary to treat claimant’s industrial spinal injuries; 2) the past medical treatments claimant received were medically necessary to treat claimant’s industrial spinal injuries with the exception of the chronic narcotic prescriptions; 3) the prescription narcotics were not medically necessary to treat claimant’s industrial spinal injuries; 4) claimant’s pulmonary condition was not medically related to his work at Kennecott; 5) the past medical care claimant received for his pulmonary condition was not industrially necessitated, since the pulmonary condition was not industrially caused; and 6) whatever future medical care claimant requires for his pulmonary condition will not be industrially necessitated, since the pulmonary condition was not industrially caused.
WORK-RELATED INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Lynn A. Witt vs. Meier’s Prime Cut, Incorporated; and/or Workers’ Compensation Fund
Case Number – 060188
Court/Judge – Marlowe
Verdict /Settlement – Order, 01/07
Amount – Ruling in favor of worker. The ALJ ordered employer/carrier to pay claimant $11,812.96 in accrued temporary total disability benefits for the time she was off work following her 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 this award and paid directly to claimant’s attorney. Attorney’s fees shall include 20% of the accrued interest. Employer/carrier must also pay claimant’s related medical expenses and must continue to pay temporary total disability benefits at the rate of $272 per week until claimant stabilizes medically. Because claimant has not yet stabilized medically, the ALJ dismissed the claims for temporary total and permanent partial disability benefits without prejudice as unripe. If her situation warrants, claimant may re-file her claim for these benefits after she stabilizes medically.
Injuries – Claimant suffered a broad-based disc bulge at C4/5 and an annular hyperintensity at C5/6. She underwent a three-level cervical fusion. Claimant still suffers from ongoing pain.
Attorney(s) - Plaintiff – Bryan A. Larson
Attorney(s) - Defense – Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) - Plaintiff – Dr. Sumner McAllister–treating physician; Dr. Junius Clawson–treating surgeon; Dr. Douglas R. Davis
Damages – Claimant sought benefits for past and recommended medical care, temporary total disability benefits and permanent partial disability benefits.
Facts/Contentions – The ALJ found claimant was at work on 11/23/05 and had cleaned a cutting-board, propping it up on insert pans to allow the underside to dry. The evidence showed that the plastic board was 5' 4" long, 18 inches wide and 1 inch thick, and weighed about 22 pounds. The ALJ found claimant was squatting down to wipe out a deli cabinet when the cutting-board fell and struck her edge-on at the back right-side junction of her head, neck and shoulder.
Employer/carrier denied that the accident occurred. However, a co-worker, while denying that he knocked the board down onto claimant as he hurried by her, testified that he was mopping the floor and heard claimant scream, whereupon he looked around and saw her on the floor with the board on her neck. The co-worker testified that he ran to help claimant, removing the board from her neck and placing it on the table.
Claimant’s physicians have not released her to return to work as she is not yet medically stable. She tried to keep working after the accident, but was unable to continue as her symptoms worsened. She has not worked since 2/13/06, when Dr. McAllister took her off work and recommended that she be urgently evaluated by a neurosurgeon. Claimant underwent surgery at the end of the following month.
Claimant’s medical record showed that she sought treatment for cervical strain in 1998 after being assaulted, but her symptoms resolved completely following that incident and she was entirely asymptomatic until she suffered this injury.
FALL INJURY CLAIM
Case Type – WA, SF; Work-related fall injury claim
Case Name – Robin W. Pendleton vs. Verizon Wireless; and/or American Home Assurance
Case Number – 050651
Court/Judge – Hann
Verdict /Settlement – Order, 02/07
Amount – Ruling in favor of employer. The ALJ adopted the medical panel’s opinion and ruled that claimant failed to prove her need for a total knee replacement was medically related to her fall at work. The ALJ therefore dismissed all of her claims with prejudice.
Injuries – Claimant suffered a knee injury; her treating physician recommends total knee replacement. The medical panel found an osteochondritis desiccans lesion with loose fragments and a pronounced loss of articular cartilage in the trochlea.
Attorney(s) - Plaintiff – K. Dawn Atkin of Atkin & Associates
Attorney(s) - Defense – Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) – Because of conflicting medical opinions, the parties agreed via stipulation to waive a hearing and refer the case directly to a medical panel composed of Dr. Craig Wilkinson–chair; and Dr. Dennis Gordon–orthopedic surgeon.
Damages – Claimant sought benefits for past medical expenses and recommended medical care, temporary total disability benefits, temporary partial disability benefits for permanent impairment, and resolution of a wage dispute.
Facts/Contentions – Claimant contended that her need for a total knee replacement was caused by a fall she suffered at work.
Employer/carrier contended that claimant’s need for a knee replacement was not caused by her fall at work, but resulted instead from a non-industrial degenerative condition. Employer/carrier based this contention on the findings of its independent medical evaluation (IME) physician.
The medical panel examined claimant, reviewed her records and diagnostic studies, and concluded that claimant suffers from pre-existing osteoarthritis, which is what makes the knee replacement necessary. The panel felt claimant would have been symptomatic whether or not she had suffered the industrial fall. The panel opined that claimant stabilized medically from the injuries she suffered in the industrial fall eight and one-half months after the fall occurred.
MEDICAL REIMBURSEMENT CLAIM
Case Type – WA, RE; Medical reimbursement claim for work-related injury
Case Name – Working Rx; and Jim Divida vs. Liberty Safe; and/or Hartford Fire Insurance Company
Case Number – 060967
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 02/07
Amount – Ruling in favor of medical provider. The ALJ found employer/carrier in default and ordered them to pay medical provider the $9.60 for prescription medications supplied to the injured worker.
Injuries – The injured worker suffered unspecified injuries.
Facts/Contentions – Working Rx filed this claim for reimbursement of $9.60 to cover prescription medications they provided to worker Jim Divida after he was injured in an industrial accident.
Employer/carrier did not file an answer to this claim or appear at the hearing on it.
REPETITIVE MOTION
INJURY CLAIM
Case Type – WA, SI; Work-related repetitive motion injury claim
Case Name – Maria Lerma vs. Timpanogas Regional Hospital; and/or Zurich North American Insurance
Case Number – 050946
Court/Judge – Hann
Verdict /Settlement – Order, 02/07
Amount – Split ruling: part in favor of worker, part in favor of employer. The ALJ dismissed with prejudice the claim for temporary total disability benefits from November 21, 2005 to the present, as the medical panel felt claimant stabilized medically from her industrial injury on that date and temporary total disability benefits are appropriate only while a claimant is not medically stable. The ALJ ruled that because claimant’s injury was industrial, she also met her burden of proof with respect to her claim that her permanent whole-person impairment was industrially related. The ALJ therefore ordered employer/carrier to pay claimant $2,648.88 in accrued permanent partial disability benefits for her 3% industrial whole-person permanent impairment. Accrued benefits are due and payable in a lump sum plus interest. Employer/carrier must also pay claimant’s related medical expenses.
Injuries – Claimant suffered from right shoulder impingement syndrome with a possible rotator cuff injury.
Attorney(s) - Plaintiff – Claimant was represented pro se.
Attorney(s) - Defense – Carrie T/ Taylor of Richards, Brandt, Miller & Nelson
Expert Witness(es) – Because of conflicting medical opinions, this case was referred to a medical panel composed of Dr. Alvin
Wirthlin–neurologist and chair; and Dr. Pilar Dechet–orthopedic surgeon.
Damages – Claimant sought benefits for past medical expenses and recommended medical care, temporary total disability benefits and permanent partial disability benefits.
Facts/Contentions – Claimant worked as a housekeeper in employer’s hospital. She collected soiled linens and towels, some of which were wet and very heavy, along with trash and biohazard materials. She placed these materials in 39-gallon trash bags, which were about three and one-half feet high and two and one-half to three feet around. Claimant loaded the bags onto a rolling hamper that held between 15 and 20 bags and pushed them to a large collection cart, which was about six feet tall and had a U-shaped opening on the side extending from about waist-height to the top of the cart. Claimant lifted the bags into the cart through this opening, often having to raise them to above shoulder-height when the collection cart was full of bags. Claimant lifted the bags with her right arm and steadied them with her left hand. On the day of her injury, she lifted between 50 and 60 bags in the course of her shift, and the bags weighed between 14 and 35 pounds, depending on whether there were wet linens in them after the patients had bathed. Claimant began feeling pain in her right shoulder and forearm about two hours before the end of her shift. She finished her shift and then sought treatment in the hospital’s emergency room. She contended that her work activities caused her right shoulder impingement syndrome and her rotator cuff injury.
Employer/carrier admitted that the injury occurred, but, relying on the opinion of an independent medical evaluation (IME) physician, denied that claimant was permanently impaired or entitled to any further workers’ compensation benefits of any kind.
The medical panel examined claimant, reviewed her records and diagnostic studies and concluded that her right shoulder impingement syndrome was medically caused by her work activities. The medical panel estimated claimant’s industrially related whole-person impairment at 3%. The panel felt that all of the treatment claimant had received so far was reasonable and medically necessary to treat her industrial injury, and future treatment might include medication, possible injections and possible surgery. The panel was unable to find evidence to justify a permanent impairment rating for claimant’s rotator cuff.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Thomas R. Sepulveda vs. Metalwest, LLC aka O-Neal Steel, Incorporated; and/or St. Paul Fire & Marine Insurance Company
Case Number – 060430
Court/Judge – Henn
Verdict /Settlement – Order, 02/07
Amount – Ruling in favor of employer. The ALJ ruled that claimant failed to meet his burden of proof with respect to legal causation. The ALJ therefore dismissed his claims with prejudice.
Injuries – Claimant contended that he suffered a spinal injury.
Attorney(s) - Plaintiff – Michael G. Belnap, Ogden
Attorney(s) - Defense – Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Damages – Claimant sought benefits for past medical expenses and recommended medical care, temporary total disability benefits, temporary partial disability benefits and permanent partial disability benefits.
Facts/Contentions – Claimant worked in maintenance for employer. He stated in his application for benefits that he was bending over, inspecting a conveyor, when a co-worker came up and slapped him hard on the buttocks. The force of the slap did not cause claimant to fall, and he immediately stood up.
Claimant contended that the co-worker hit him on the back, but employer/carrier disputed this claim, and the ALJ did not find it credible in light of the angle at which claimant was bent over. The ALJ opined that given the open-handed, sideways motion the co-worker said he used, it would have been almost impossible for the co-worker to have struck claimant on the back, as at that angle the co-worker’s hand would have glanced off claimant’s back. The ALJ found that the co-worker did not use more force than might be encountered in an everyday greeting outside of work, and did not knock claimant forward or even cause him to lose his balance. The ALJ noted in her opinion on this claim that claimant suffered from a pre-existing low-back condition.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Troy Ogden vs. Tramcor Corporation; and/or Workers’ Compensation Fund
Case Number – 050745
Court/Judge – Holley
Verdict /Settlement – Order, 02/07
Amount – Ruling in favor of worker. The ALJ ruled that the preponderance of the medical evidence indicated that claimant was not medically stable for the period running from 06/12/2000 through 09/12/2005. The ALJ therefore ordered employer/carrier to pay claimant $139,466 in accrued temporary total disability benefits, with offset credit given for any benefits already paid. These benefits are due and payable in a lump sum plus $11,157.28 in accrued interest and less attorney’s fees, which are to be deducted from this award and paid directly to claimant’s attorney.
Injuries – Claimant suffered lumbar spinal injuries (nature and extent disputed). He underwent multiple surgeries.
Attorney(s) - Plaintiff – Michael G. Belnap, Ogden
Attorney(s) - Defense – Hans M. Scheffler
Expert Witness(es) - Plaintiff – Dr. Lyle Mason–treating surgeon; Dr. Stephen Warner–referral; Dr. Brent Felix–referral; Dr. Lynn Stromberg–referral
Expert Witness(es) - Defense – Dr. James Rhee–independent medical evaluation (IME) physician; Dr. Stephen Marble–IME physician
Damages – Claimant sought benefits for past medical expenses and recommended medical care, temporary total disability compensation, permanent partial disability compensation and permanent total disability compensation.
Facts/Contentions – Claimant and employer/carrier both acknowledged that claimant suffered an industrial lumbar spinal injury while unloading a truckload of stone and brick. However, employer/carrier contended that they had already paid claimant all of the workers’ compensation benefits to which he was entitled.
Claimant’s treating and evaluating physicians all noted that he had a small protrusion at L5/S1, but they added that the location of this protrusion did not correspond to the location of the pain that claimant was experiencing.
ALJ Hann, who was assigned this case before she left the Labor Commission, ruled that the only issue that was ripe for adjudication was the question of temporary total disability for the period running from 06/12/2000 through 09/12/2005. The case was then re-assigned to ALJ holley.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – James C. Loader vs. Salt Lake County (self-insured)
Case Number – 050602
Court/Judge – Lima
Verdict /Settlement – Order, 02/07
Amount – Ruling in favor of worker. The ALJ adopted the medical panel’s report and ruled that claimant suffered a work-related injury. ALJ Lima further ruled that claimant met his burden of proof with respect to both medical and legal causation, including the Allen test for legal causation. In Allen v. Industrial Commission, the Utah Supreme Court held that a previously injured employee seeking workers’ compensation benefits for a re-injury must prove that the work activities leading up to the injury exceeded those a person might encounter in everyday life, such as lifting a toddler or changing a tire. Although twisting to catch a falling object is an everyday exertion, ALJ Lima noted that claimant’s situation was complicated by the fact that he was up on a ladder at the time and could not move his lower body to counter his shift in weight. This fact, the ALJ ruled, changed the circumstances of the injury so that it satisfied the Allen test.
ALJ Lima ordered self-insured employer to pay claimant $6,115.20 in accrued permanent partial disability benefits for his 5% industrially related whole-person permanent impairment. Accrued benefits are due and payable in a lump sum plus interest. Employer must also pay claimant’s related medical expenses as determined by the medical panel.
Injuries – Claimant suffered a lumbar spinal injury. He was diagnosed with degenerative disc disease, annular tears at L2/3 and L5/S1 with Grade I disc bulging. Claimant received several epidural injections for his ongoing back pain, which comes and goes and worsens with exertion.
Attorney(s) - Plaintiff – Claimant was represented pro se.
Attorney(s) - Defense – T. J. Tsakalos of the Salt Lake County District Attorney’s Office
Expert Witness(es) – Because of conflicting medical testimony, the ALJ referred this case to a medical panel composed of Dr. Alvin Wirthlin–chair; and Dr. Glenn Momberger–orthopedic surgeon.
Damages – Claimant and self-insured employer disagreed over the issues of past medical expenses, recommended medical care and permanent partial disability benefits.
Facts/Contentions – Claimant worked for self-insured employer as an HVAC technician. He was up on a six-foot ladder installing a venting system in an attic space above a bathroom. Claimant could only squeeze his upper body through the small access hole up to the waist. A four-foot piece of pipe propped up in the attic behind him, and out of the corner of his eye he saw that this pipe had slipped and was starting to fall. Claimant turned to his right at a 60-degree angle to catch the pipe so it would not break through the ceiling, but could only move his upper body. As he twisted, claimant felt a sharp pain in his lower back about six inches above the belt-line and radiating up to his shoulders. He took a break, and the pain went away.
Claimant did not tell his supervisor about the incident, and he finished his shift. However, when he tried to get out of bed the next day, he felt the same sharp pain, his legs gave under him, and he fell to the floor. He called his supervisor, told him about his back pain, and stayed home from work. He did not return to work. When the clinic released him to return to light-duty work, but none was available, so claimant stayed off work for almost four months.
Self-insured employer accepted liability and paid benefits, but declined to pay further medical expenses seven months after claimant was injured and also denied permanent partial disability benefits at that time. Employer’s independent medical evaluation (IME) physician believed claimant had no industrially related permanent whole-person impairment and did not need further treatment for his industrial injury. The medical record indicated that claimant had a history of prior low-back injuries.
The medical panel examined claimant, reviewed his records and diagnostic studies and concluded that claimant’s present low-back pain is industrially related. The panel assigned claimant a 5% whole-person impairment rating, all industrial. The panel felt claimant stabilized medically from his industrial injury four months after it occurred and is not a candidate for surgery.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Nathan J. Anderson vs. Albertson’s, Incorporated (self-employed)
Case Number – 050560
Court/Judge – Lima
Verdict /Settlement – Order, 02/07
Amount – Ruling in favor of worker. The ALJ adopted the medical panel’s report over employer’s objections and ruled that claimant suffered a work-related injury. ALJ Lima further ruled that claimant met his burden of proof with respect to both medical and legal causation, including the Allen test for legal causation. In Allen v. Industrial Commission, the Utah Supreme Court held that a previously injured employee seeking workers’ compensation benefits for a re-injury must prove that the work activities leading up to the injury exceeded those a person might encounter in everyday life, such as lifting a toddler or changing a tire. In this case, the ALJ ruled, the work activities that caused claimant’s stroke included not only his lifting of the cereal boxes that immediately preceded the stroke, but the episodes of repetitive heavy lifting up to 75 pounds and the pushing of the 500-pound bale that occurred earlier in the shift. These activities, the ALJ ruled, definitely exceeded everyday exertions and thus satisfied the Allen test.
The ALJ ordered self-insured employer to pay claimant $2,627 in accrued temporary total disability compensation and $23,259.60 in permanent partial disability compensation for his 21% industrial whole-person impairment. These 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. Self-insured employer must also pay claimant’s related medical expenses, including the costs of his surgery.
Injuries – Claimant suffered a left occipital lobe infarct or stroke. Diagnostic tests related to this injury revealed a pre-existing, previously asymptomatic patent foramen ovale (PFO), which ruptured and was surgically repaired.
Attorney(s) - Plaintiff – Halston T. Davis
Attorney(s) - Defense – Bret A. Gardner of Blackburn & Stoll
Expert Witness(es) – Because of conflicting medical testimony, the ALJ referred this case to a medical panel composed of Dr. Craig Wilkinson–vascular surgeon and chair; and Dr. Peter Jensen–cardiac, thoracic and vascular surgeon. Both panel physicians have experience with stroke and its symptoms.
Damages – Claimant sought benefits for past medical expenses and recommended medical care, temporary total disability compensation, temporary partial disability compensation and permanent partial disability compensation.
Facts/Contentions – Claimant’s work for self-insured employer included unloading freight, breaking it down and stocking it on store aisles. Claimant took items off pallets and placed them on store shelves. There were 70 to 80 items on each pallet, and the heaviest item claimant lifted from the pallets weighed 75 pounds. However, on the night he was injured, claimant also pushed a 500-pound bale of crushed empty boxes about a foot because he could not get a pallet jack under it. Claimant said the room was full of freight, prohibiting him from positioning the pallet jack under the bale as he usually did. After pushing the bale, claimant started placing cereal boxes on shelves, but felt dizzy and experienced numbness in his left leg. He took two aspirin and kept working, but later asked a co-worker to take him to the hospital. Physicians released him to return to light-duty work about three months later, with no heavy lifting or strenuous manual labor. His physician released him to return to regular work one month after the light-duty release.
Self-insured employer denied claimant’s stroke was caused by his work activities. Employer also argued that claimant’s work activities the night of his injury did not constitute extraordinary exertion and claimant did not meet the Allen test for legal causation. Employer argued that claimant’s congenital PFO constituted a pre-existing condition.
The medical panel examined claimant, reviewed his records and diagnostic tests, and concluded that claimant suffered a stroke as a direct result of his work activities. The panel felt that pushing the 500-pound bale of compacted boxes probably opened claimant’s PFO and caused his stroke. The panel opined that claimant stabilized medically from his work injury four months after it occurred. The panel felt claimant sustained an industrial whole-person impairment from persistent left-leg numbness and weakness and an additional industrial whole-person impairment due to visual field loss for a 21% total industrial whole-person impairment. The panel felt that all of the medical care claimant received, including the surgery, was necessary to treat his industrial injury because claimant’s PFO would likely have remained asymptomatic his whole life if he had not engaged in the industrial exertion.
DEATH BENEFITS DISPUTE
Case Type – DB; Work-related death benefits dispute
Case Name – Taina Ofa Tamoua; James Afuakimoana Tamoua; Kalolaine Tamoua; Paule Christopher Tamoua; Sione Vaiokema Tamoua; and Soana Tupou Malohi Tamoua vs. Companions Escorts (uninsured); and/or Uninsured Employers’ Fund
Case Number – 060306
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 02/07
Amount – Ruling in favor of respondent. The ALJ determined that decedent Edwin Tamoua was an employee of Johnny Moa and not of Companions Escorts. The ALJ therefore dismissed the claims against Companions Escorts and UEF with prejudice.
Injuries – Edwin Tamoua was shot to death by an unknown assailant while Tamoua was on security duty in the parking lot of Companions Escorts
Attorney(s) - Plaintiff – Timothy C. Allen
Attorney(s) - Defense – For Companions Escorts: Stephen W. Cook of Cook & Associates; for UEF: Sharon J. Eblen of Blackburn & Stoll
Damages – Decedent’s dependents sought death and/or burial benefits.
Facts/Contentions – Decedent Edwin Tamoua’s wife, Soana, and children claimed they were entitled to death benefits from Companions Escorts (uninsured) and/or the UEF on grounds that their husband/father, decedent Edwin Tamoua, known as Ed, was shot and killed while working as a security guard for Companions Escorts’ office building. At the time of his death, Tamoua was in Companions’ parking lot.
Companions Escorts and UEF denied liability, contending that decedent Ed Tamoua was not an employee of Companions Escorts.
At the hearing on this claim, Edwin’s wife Soana recalled that Ed’s nephew Johnny Moa lined Ed up with the job at Companions Escorts, where Ed worked five or six nights per week. Soana also recalled that Ed worked with Johnny to provide security services for the Sundance Film Festival. Soana testified that Johnny Moa and Roy Hoskins, the owner of Companions Escorts, gave Ed a Cadillac. Soana had the title to the Cadillac, but did not know why Johnny Moa and Roy Hoskins gave it to Ed.
Roy Hoskins testified that he contracted with Johnny Moa to provide security services for his company rather than hiring his own security guards, and Moa paid his own employees. Hoskins did not dispute that Ed Tamoua was shot while watching Hoskins’ building, but Hoskins did deny that Tamoua was working for Hoskins at the time he was shot. Hoskins denied ever paying Tamoua any money directly.
Johnny Moa testified that he owned and operated a security and bodyguard company, known as Guerrilla, Incorporated. He said his principal clients were Companions Escorts and the Sundance Film Festival. He said he scheduled Ed to cover some of the security shifts for Companions Escorts and Sundance. He admitted giving Ed the Cadillac. He also candidly admitted that he did not carry workers’ compensation insurance on his employees. He said Tamoua’s assailant was never caught or even identified.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – James C. Loader vs. Salt Lake County (self-insured)
Case Number – 050602
Court/Judge – Lima
Verdict /Settlement – Order, 02/07
Amount – Ruling in favor of worker. The ALJ adopted the medical panel’s report and ruled that claimant suffered a work-related injury. ALJ Lima further ruled that claimant met his burden of proof with respect to both medical and legal causation, including the Allen test for legal causation. In Allen v. Industrial Commission, the Utah Supreme Court held that a previously injured employee seeking workers’ compensation benefits for a re-injury must prove that the work activities leading up to the injury exceeded those a person might encounter in everyday life, such as lifting a toddler or changing a tire. Although twisting to catch a falling object is an everyday exertion, ALJ Lima noted that claimant’s situation was complicated by the fact that he was up on a ladder at the time and could not move his lower body to counter his shift in weight. This fact, the ALJ ruled, changed the circumstances of the injury so that it satisfied the Allen test.
ALJ Lima ordered self-insured employer to pay claimant $6,115.20 in accrued permanent partial disability benefits for his 5% industrially related whole-person permanent impairment. Accrued benefits are due and payable in a lump sum plus interest. Employer must also pay claimant’s related medical expenses as determined by the medical panel.
Injuries – Claimant suffered a lumbar spinal injury. He was diagnosed with degenerative disc disease, annular tears at L2/3 and L5/S1 with Grade I disc bulging. Claimant received several epidural injections for his ongoing back pain, which comes and goes and worsens with exertion.
Attorney(s) - Plaintiff – Claimant was represented pro se.
Attorney(s) - Defense – T. J. Tsakalos of the Salt Lake County District Attorney’s Office
Expert Witness(es) – Because of conflicting medical testimony, the ALJ referred this case to a medical panel composed of Dr. Alvin Wirthlin–chair; and Dr. Glenn Momberger–orthopedic surgeon.
Damages – Claimant and self-insured employer disagreed over the issues of past medical expenses, recommended medical care and permanent partial disability benefits.
Facts/Contentions – Claimant worked for self-insured employer as an HVAC technician. He was up on a six-foot ladder installing a venting system in an attic space above a bathroom. Claimant could only squeeze his upper body through the small access hole up to the waist. A four-foot piece of pipe propped up in the attic behind him, and out of the corner of his eye he saw that this pipe had slipped and was starting to fall. Claimant turned to his right at a 60-degree angle to catch the pipe so it would not break through the ceiling, but could only move his upper body. As he twisted, claimant felt a sharp pain in his lower back about six inches above the belt-line and radiating up to his shoulders. He took a break, and the pain went away.
Claimant did not tell his supervisor about the incident, and he finished his shift. However, when he tried to get out of bed the next day, he felt the same sharp pain, his legs gave under him, and he fell to the floor. He called his supervisor, told him about his back pain, and stayed home from work. He did not return to work. When the clinic released him to return to light-duty work, but none was available, so claimant stayed off work for almost four months.
Self-insured employer accepted liability and paid benefits, but declined to pay further medical expenses seven months after claimant was injured and also denied permanent partial disability benefits at that time. Employer’s independent medical evaluation (IME) physician believed claimant had no industrially related permanent whole-person impairment and did not need further treatment for his industrial injury. The medical record indicated that claimant had a history of prior low-back injuries.
The medical panel examined claimant, reviewed his records and diagnostic studies and concluded that claimant’s present low-back pain is industrially related. The panel assigned claimant a 5% whole-person impairment rating, all industrial. The panel felt claimant stabilized medically from his industrial injury four months after it occurred and is not a candidate for surgery.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Nathan J. Anderson vs. Albertson’s, Incorporated (self-employed)
Case Number – 050560
Court/Judge – Lima
Verdict /Settlement – Order, 02/07
Amount – Ruling in favor of worker. The ALJ adopted the medical panel’s report over employer’s objections and ruled that claimant suffered a work-related injury. ALJ Lima further ruled that claimant met his burden of proof with respect to both medical and legal causation, including the Allen test for legal causation. In Allen v. Industrial Commission, the Utah Supreme Court held that a previously injured employee seeking workers’ compensation benefits for a re-injury must prove that the work activities leading up to the injury exceeded those a person might encounter in everyday life, such as lifting a toddler or changing a tire. In this case, the ALJ ruled, the work activities that caused claimant’s stroke included not only his lifting of the cereal boxes that immediately preceded the stroke, but the episodes of repetitive heavy lifting up to 75 pounds and the pushing of the 500-pound bale that occurred earlier in the shift. These activities, the ALJ ruled, definitely exceeded everyday exertions and thus satisfied the Allen test.
The ALJ ordered self-insured employer to pay claimant $2,627 in accrued temporary total disability compensation and $23,259.60 in permanent partial disability compensation for his 21% industrial whole-person impairment. These 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. Self-insured employer must also pay claimant’s related medical expenses, including the costs of his surgery.
Injuries – Claimant suffered a left occipital lobe infarct or stroke. Diagnostic tests related to this injury revealed a pre-existing, previously asymptomatic patent foramen ovale (PFO), which ruptured and was surgically repaired.
Attorney(s) - Plaintiff – Halston T. Davis
Attorney(s) - Defense – Bret A. Gardner of Blackburn & Stoll
Expert Witness(es) – Because of conflicting medical testimony, the ALJ referred this case to a medical panel composed of Dr. Craig Wilkinson–vascular surgeon and chair; and Dr. Peter Jensen–cardiac, thoracic and vascular surgeon. Both panel physicians have experience with stroke and its symptoms.
Damages – Claimant sought benefits for past medical expenses and recommended medical care, temporary total disability compensation, temporary partial disability compensation and permanent partial disability compensation.
Facts/Contentions – Claimant’s work for self-insured employer included unloading freight, breaking it down and stocking it on store aisles. Claimant took items off pallets and placed them on store shelves. There were 70 to 80 items on each pallet, and the heaviest item claimant lifted from the pallets weighed 75 pounds. However, on the night he was injured, claimant also pushed a 500-pound bale of crushed empty boxes about a foot because he could not get a pallet jack under it. Claimant said the room was full of freight, prohibiting him from positioning the pallet jack under the bale as he usually did. After pushing the bale, claimant started placing cereal boxes on shelves, but felt dizzy and experienced numbness in his left leg. He took two aspirin and kept working, but later asked a co-worker to take him to the hospital. Physicians released him to return to light-duty work about three months later, with no heavy lifting or strenuous manual labor. His physician released him to return to regular work one month after the light-duty release.
Self-insured employer denied claimant’s stroke was caused by his work activities. Employer also argued that claimant’s work activities the night of his injury did not constitute extraordinary exertion and claimant did not meet the Allen test for legal causation. Employer argued that claimant’s congenital PFO constituted a pre-existing condition.
The medical panel examined claimant, reviewed his records and diagnostic tests, and concluded that claimant suffered a stroke as a direct result of his work activities. The panel felt that pushing the 500-pound bale of compacted boxes probably opened claimant’s PFO and caused his stroke. The panel opined that claimant stabilized medically from his work injury four months after it occurred. The panel felt claimant sustained an industrial whole-person impairment from persistent left-leg numbness and weakness and an additional industrial whole-person impairment due to visual field loss for a 21% total industrial whole-person impairment. The panel felt that all of the medical care claimant received, including the surgery, was necessary to treat his industrial injury because claimant’s PFO would likely have remained asymptomatic his whole life if he had not engaged in the industrial exertion.
DEATH BENEFITS DISPUTE
Case Type – DB; Work-related death benefits dispute
Case Name – Taina Ofa Tamoua; James Afuakimoana Tamoua; Kalolaine Tamoua; Paule Christopher Tamoua; Sione Vaiokema Tamoua; and Soana Tupou Malohi Tamoua vs. Companions Escorts (uninsured); and/or Uninsured Employers’ Fund
Case Number – 060306
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 02/07
Amount – Ruling in favor of respondent. The ALJ determined that decedent Edwin Tamoua was an employee of Johnny Moa and not of Companions Escorts. The ALJ therefore dismissed the claims against Companions Escorts and UEF with prejudice.
Injuries – Edwin Tamoua was shot to death by an unknown assailant while Tamoua was on security duty in the parking lot of Companions Escorts
Attorney(s) - Plaintiff – Timothy C. Allen
Attorney(s) - Defense – For Companions Escorts: Stephen W. Cook of Cook & Associates; for UEF: Sharon J. Eblen of Blackburn & Stoll
Damages – Decedent’s dependents sought death and/or burial benefits.
Facts/Contentions – Decedent Edwin Tamoua’s wife, Soana, and children claimed they were entitled to death benefits from Companions Escorts (uninsured) and/or the UEF on grounds that their husband/father, decedent Edwin Tamoua, known as Ed, was shot and killed while working as a security guard for Companions Escorts’ office building. At the time of his death, Tamoua was in Companions’ parking lot.
Companions Escorts and UEF denied liability, contending that decedent Ed Tamoua was not an employee of Companions Escorts.
At the hearing on this claim, Edwin’s wife Soana recalled that Ed’s nephew Johnny Moa lined Ed up with the job at Companions Escorts, where Ed worked five or six nights per week. Soana also recalled that Ed worked with Johnny to provide security services for the Sundance Film Festival. Soana testified that Johnny Moa and Roy Hoskins, the owner of Companions Escorts, gave Ed a Cadillac. Soana had the title to the Cadillac, but did not know why Johnny Moa and Roy Hoskins gave it to Ed.
Roy Hoskins testified that he contracted with Johnny Moa to provide security services for his company rather than hiring his own security guards, and Moa paid his own employees. Hoskins did not dispute that Ed Tamoua was shot while watching Hoskins’ building, but Hoskins did deny that Tamoua was working for Hoskins at the time he was shot. Hoskins denied ever paying Tamoua any money directly.
Johnny Moa testified that he owned and operated a security and bodyguard company, known as Guerrilla, Incorporated. He said his principal clients were Companions Escorts and the Sundance Film Festival. He said he scheduled Ed to cover some of the security shifts for Companions Escorts and Sundance. He admitted giving Ed the Cadillac. He also candidly admitted that he did not carry workers’ compensation insurance on his employees. He said Tamoua’s assailant was never caught or even identified.
WORK INJURY CLAIM
Case Type – WA, SF, MS; Work-related miscellaneous (syncope) and fall injury
Case Name – (Name of case withheld)
Case Number – 060674
Court/Judge – Holley
Verdict /Settlement – Order, 03/07
Amount – Ruling in favor of worker. The ALJ found claimant met his burden of proof with respect to legal and medical causation, since he sustained an injury in the course and scope of his employment. The ALJ ordered employer/carrier to pay claimant’s outstanding past medical expenses in a lump sum plus interest.
Injuries – Claimant suffered an incident of syncope (unexplained fainting), tachycardia (rapid heartbeat), and high blood pressure. He also bit hit tongue when he fell forward.
Attorney(s) - Plaintiff – Claimant was represented pro se.
Attorney(s) - Defense – Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) - Plaintiff – Dr. Hemant Hedge–treating physician at McKay-Dee Hospital Emergency Room
Damages – Claimant sought benefits to pay for past medical expenses.
Facts/Contentions – Claimant was a construction worker. On the day of his injury, he reported for work at 7 AM and completed three or four jobs in quick succession. Shortly after 9 AM, he walked across the site with his toolbox in his hand, blacked out and fell face-down in mud. Paramedics responded to the scene and found that claimant was suffering from tachycardia and elevated blood pressure. The paramedics took claimant to the hospital ER, and Dr. Hedge kept claimant overnight for observation. Pulmonary tests, an echocardiogram and an MRI of claimant’s brain revealed no abnormalities.
Employer/carrier refused to pay for claimant’s treatment. They contended that claimant’s syncope and tachycardia were caused by pre-existing conditions and/or events. They noted that ten months before the industrial incident, claimant went for a jog after consuming alcohol and collapsed. Employer/carrier further noted that while breaking up a bar fight two months before the industrial incident, claimant had his head slammed into a brick wall and sustained a very small fronto-temporal extra-axial subdural hematoma. Employer/carrier also noted that when he was treated for the industrial injury, claimant’s toxicology screen was positive for marijuana. Dr. Hedge also speculated that alcohol might have been involved in the industrial syncopal incident. However, the ALJ noted that no physicians in the joint medical exhibit labeled any of these events as pre-existing injuries, contributing conditions, or causes of claimant’s work-related syncopal incident.
Employer/carrier alleged that claimant had a family history of seizure disorder, noting that according to the medical record, claimant earlier reported that he felt dizzy after taking Ativan and passed out and also told a physician that his brother had a seizure disorder. However, at the hearing on his claim, claimant denied ever taking Ativan and said his brother did not have a seizure disorder. When the ALJ examined this part of the medical record, she saw that it related to a man of 57. Claimant was in his early thirties when the work-related syncopal incident occurred. The ALJ therefore concluded that this part of the medical record was a mistaken reference and did not refer to claimant.
ORDER ON REVIEW
Case Type – WA; Work-related injury claim
Case Name – Mike B. Oseguera vs. Fidelity Guaranty & Trust; and Sedgwick Claims Management Services, Incorporated
Case Number – 020827
Court/Judge – This order was issued by Labor Commissioner Sherrie Hayashi.
Verdict /Settlement – Order, 03/07
Amount – Ruling in favor of worker. The Commissioner found that none of the medical opinions, including that of the medical panel, were conclusive. Since Dr. Fotheringham did not explain the reasoning behind his conclusion, and the panel opinion was based on a misperception regarding claimant’s medical history, the Commissioner found Dr. Horne’s opinion to be the most persuasive. The Commissioner noted that under Utah law, an aggravation of a preexisting condition is compensable if the aggravation arose out of the claimant’s employment. The Commissioner concluded that claimant’s left hip condition was asymptomatic until the industrial accident, and claimant had not been seeing any doctors for treatment, taking time off work or otherwise being treated for the hip condition in any way before the industrial accident. The Commissioner ruled that the left hip replacement surgery was necessary to treat the now-symptomatic condition, and that the need for the surgery was created by the work-related aggravation. The Commissioner therefore found that the industrial accident was compensable and ordered employer/carrier to pay the costs of the surgery plus claimant’s attorney’s fees.
Injuries – Claimant suffered an aggravation of a previously asymptomatic left hip condition (osteoarthritis) which necessitated left hip replacement surgery.
Attorney(s) - Plaintiff – Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense – Theodore E. Kanell of Plant, Christensen & Kanell and Mark A. Riekhof of Hall, Prangle & Schoonveld
Expert Witness(es) - Plaintiff – Dr. Horne–treating physician
Expert Witness(es) - Defense – Dr. Fotheringham–independent medical evaluation (IME) physician
Expert Witness(es) – Dr. Holme–chair of medical panel
Damages – Claimant sought benefits to pay for past medical expenses.
Facts/Contentions – Claimant contended that cumulative trauma from his work duties of driving truck for employer combined with an industrial accident to injure his left hip. He was pulling on a loaded pallet jack weighing approximately 600 pounds when one of the jack’s wheels hung up on a wood chip. The jack came to a sudden stop, jarring claimant’s left hip and low back. He sought medical care shortly afterward. Dr. Horne, his treating physician, concluded that he had an asymptomatic arthritic hip condition which was aggravated by the industrial accident and the cumulative trauma of claimant’s work activities and became symptomatic as a result of the aggravation.
Employer/carrier relied on the opinion of its IME physician in making the decision to deny benefits. The IME physician noted that claimant had no hip symptoms until the industrial accident. However, the IME physician then concluded, without discussion, that claimant’s need for hip replacement surgery was not related to the industrial accident.
The medical panel to whom the ALJ referred the case wrote that claimant first presented only with low-back pain and developed hip pain later. However, the medical record indicated quite clearly that claimant presented from the beginning with both hip and low-back pain. Nevertheless, the ALJ denied benefits on grounds of causation. Claimant filed a motion for review of the case by the Labor Commissioner.
INDUSTRIAL AUTOMOBILE
ACCIDENT CLAIM
Case Type – WA, AA; Work-related automobile accident
Case Name – Nancy E. Von Forell vs. Life Path Hospice & Family Care; and Workers’ Compensation Fund
Case Number – 050917
Court/Judge – Marlowe
Verdict /Settlement – Order, 03/07
Amount – Split ruling: part in favor of worker, part in favor of employer. The ALJ adopted the medical panel’s conclusions and ruled that claimant’s lumbar spinal injuries were caused by the industrial accident, but the aggravations of her pre-existing fibromyalgia and depression were not. The ALJ ordered employer/carrier to pay all of claimant’s medical expenses incurred in connection with treatment of her lumbar spinal injuries. Employer/carrier must also pay claimant temporary total disability benefits for the time she was off work. This period runs from the date of the accident until she stabilized medically eight and one-half months later. These accrued benefits, totaling $21,793, are due and payable in a lump sum plus interest.
Injuries – The medical panel found that claimant suffered a traumatic L5 superior endplate compression in the accident. She also claimed the accident aggravated her pre-existing fibromyalgia and depression (claim disputed).
Attorney(s) - Plaintiff – Claimant was represented pro se.
Attorney(s) - Defense – Lori Hansen
Expert Witness(es) – Because of conflicting medical testimony, the ALJ referred this case to a medical panel composed of Dr. Alvin J. Wirthlin–neurologist and chair; Dr. Genn Momberger–orthopedic surgeon; and Dr. Thomas Schenkenberg.
Damages – Claimant sought benefits to pay for past medical expenses and recommended medical care, as well as temporary total disability benefits.
Facts/Contentions – The parties both acknowledged that claimant was involved in an automobile accident while in the course and scope of her employment. While on her way to visit a patient, claimant was attempting to move into the left lane of the 33rd South off-ramp of I-15 approaching West Temple. She was twisted in her seat, looking over her left shoulder, when she struck the truck in front of her at an angle. Her 1987 Saab did not have airbags, but claimant was wearing her seatbelt, which bruised her ribs. Her car was totaled in the accident.
Employer/carrier disputed the claim that the accident aggravated claimant’s pre-existing fibromyalgia and depression. Employer/carrier also disputed the claims for low back injuries and temporary total disability benefits.
The medical panel examined claimant, reviewed her medical records and diagnostic studies and concluded that her low-back injuries were related to the industrial accident, but the aggravations of her fibromyalgia and depression were not. The panel estimated claimant’s permanent whole-person impairment from the lumbar spinal injuries she incurred in the accident at 4%. The panel felt claimant stabilized medically eight and one-half months after the accident.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Sharon Ford vs. Smith’s Marketplace (self-insured)
Case Number – 060048
Court/Judge – Marlowe
Verdict /Settlement – Order, 03/07
Amount – Ruling in favor of worker. The ALJ adopted the medical panel’s opinion and ruled that claimant’s disc herniation was caused by her work activities, which exceeded those encountered in everyday life and thus satisfied the standard of proof for re-injury where a pre-existing condition is present. The ALJ ordered self-insured employer to pay claimant $7,566 in accrued temporary total disability benefits for the time period running from the date of her industrial injury through the date when she stabilized medically. Employer must also pay claimant $4,539.60 in accrued benefits for her 5% industrial whole-person permanent impairment. 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. The ALJ ordered employer to pay all of claimant’s related medical expenses, including the costs of any future medical treatment required to treat claimant’s industrial injury.
Injuries – Claimant suffered a Grade II left foraminal and far lateral disc herniation at L3/4 impinging on the foraminal left nerve root at L3 and diffuse disc bulging at L1/2 and L4.5. She underwent a far lateral foraminectomy and partial discectomy at L3/4. Subsequent diagnostic tests revealed a possible recurrence of the herniation.
Attorney(s) - Plaintiff – Daniel F. Bertch of Bertch Robson
Attorney(s) - Defense – Bret A. Gardner of Blackburn & Stoll
Expert Witness(es) – Because of conflicting medical testimony, the ALJ referred this case to a medical panel composed of Dr. Joseph Q. Jarvis–chair; and Dr. Bruce Newton.
Damages – Claimant sought benefits to pay for past medical care and recommended medical treatment, as well as temporary total disability benefits and permanent partial disability benefits.
Facts/Contentions – Claimant, aged 52, worked for self-insured employer as a clerk in the domestics department. She stated that she helped break down 30 to 40 pallets of freight, each containing 20 to 30 boxes weighing up to 50 pounds. Claimant carried the boxes from the pallet to two other pallets and stacked them, starting six to eight inches off the ground and going up six to seven feet. She began feeling back pain about an hour into the job, but worked for another hour, then took a break and continued to work till lunchtime. After lunch, she hurt too badly to finish her shift. She sought medical care that afternoon. She claimed her work activities caused her herniated and bulging discs.
Self-insured employer admitted that the incident occurred as described and paid some benefits, but denied liability for the spinal care and surgery, contending that claimant’s lumbar spinal problems were caused by a pre-existing degenerative condition. Claimant had a long-standing history of low-back pain.
The medical panel examined claimant, reviewed her medical records and diagnostic studies and concluded that her low-back condition changed substantially after the industrial accident. Furthermore, the panel noted that the herniated discs were not documented prior to the industrial accident. The panel therefore concluded that claimant’s low-back problems were caused by the industrial accident, which left her with a 10% whole-person permanent impairment, of which 5% was industrial. The panel found that the medical treatment claimant received was necessary and appropriate, and because she has a recurrent herniation, further treatment will probably be necessary in future. If her condition worsens, repeat surgery may be needed.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Anne M. Chavez vs. Relizon; Phoenix Insurance Company; and St. Paul Travelers
Case Number – 051023
Court/Judge – Marlowe
Verdict /Settlement – Order, 03/07
Amount – Ruling in favor of employer. The ALJ adopted the medical panel’s conclusions, ruled that claimant failed to prove medical causation, and dismissed this claim with prejudice.
Injuries – Claimant suffered a left elbow injury. She underwent a left radial tunnel decompression at the elbow and a left lateral epicondylectomy with elbow fasciotomy.
Attorney(s) - Plaintiff – Claimant was represented pro se.
Attorney(s) - Defense – Mark R. Sumsion of Richards, Brandt, Miller & Nelson
Expert Witness(es) – Because of the conflict in the medical testimony, the ALJ referred this case to a medical panel composed of Dr. Joseph Q. Jarvis–chair; and Dr. Joel Dall.
Damages – Claimant sought benefits for past medical expenses and recommended medical care, temporary total disability benefits and temporary partial disability benefits.
Facts/Contentions – Claimant was putting two plastic trays full of envelopes into a cage. This activity required her to lift the trays over her head. As she was placing one tray on a shelf in the cage, she banged her left arm on a beam. The beam struck her left arm on the groove just above the elbow. She also twisted her back. At the hearing on her claim, she testified that she thought the pain would go away, so she did not immediately seek medical treatment. However, she eventually had to consult a doctor when the pain did not go away. She had surgery on her left elbow not quite fourteen months after she was injured. She underwent physical therapy after her surgery, and was off work until her doctor released her to return to light duty work a month later.
Employer/carriers contended that claimant’s need for surgery was not causally related to her industrial accident. Employer/carriers relied on the opinion of their independent medical evaluation (IME) physician. This doctor examined claimant before the surgery and concluded that any injury claimant suffered in the industrial accident had resolved. Employer/carriers thereupon declined to pay for the surgery.
The medical panel examined claimant, reviewed her records and diagnostic studies and concluded that there was no medical causal link between claimant’s industrial accident and her need for the left elbow surgery. The panel also concluded that claimant does not need any further medical treatment as a result of her industrial accident.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – (Name of case withheld)
Case Number – 060217
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 03/07
Amount – Ruling in favor of employer. The ALJ found claimant’s account of the accident completely incredible and noted that it “befuddled the laws of physics.” The ALJ dismissed this claim with prejudice, finding claimant failed to prove she suffered an industrial injury.
Injuries – Claimant suffered a left shoulder injury.
Attorney(s) - Plaintiff – Sherlynn W. Fenstermaker of Ivie & Young, Provo
Attorney(s) - Defense – For employer/carrier: Randy S. Kester of Young, Kester & Petro,
Provo; for Uninsured Employers’ Fund: Sharon J. Eblen of Blackburn & Stoll
Expert Witness(es) - Plaintiff – Dr. Wayne Mortensen
Damages – Claimant sought benefits for past medical expenses and recommended medical treatment, as well as permanent total disability benefits. At the hearing on her claim, she withdrew the claim for permanent total disability benefits.
Facts/Contentions – Claimant worked for employer, a store selling western apparel and horse-riding equipment. Her duties included shaping cowboy hats, cleaning the store, unloading freight and sales work. She claimed she was injured while she and a co-worker were moving a clothing display unit composed of several shelves down a flight of stairs. She claimed she reported the accident to employer’s secretary one week after it occurred and sought medical treatment one week after she reported it. She continued to work for employer without taking any time off until she left to take another job five weeks after the industrial accident. Her treating physician recommended arthroscopic surgery to treat her left shoulder problems.
Uninsured employer and Uninsured Employers’ Fund denied that the industrial accident occurred. Employer/carrier also contended that claimant failed ro report any industrial injury within 180 days as required by Utah law.
The ALJ noted that claimant said she was on the bottom end of the shelving unit as she and the co-worker tipped it onto its side and moved it down the flight of 15 stairs. However, the ALJ noted, claimant was not able to recall the height of the unit after it was tipped on its side and provided no estimate of its weight. Furthermore, the ALJ noted, claimant maintained that she positioned herself to the left of the unit and gripped the unit with her left hand, yet her left arm did not cross her body. The ALJ opined that this position was “an anatomical impossibility” which “defied any known configuration of the human body.” Claimant then stated that as she backed down the stairs below the unit, it picked up momentum and then suddenly dug into the carpet and stopped abruptly, jerking claimant’s shoulder. Claimant exclaimed, “That really hurt,” yet, the ALJ noted, the co-worker on the other end of the unit did not hear the exclamation. Claimant and the co-worker continued moving the shelving unit down the rest of the stairs and then tipped it back into an upright position. Claimant spent the rest of the day, a Friday, and the week after that moving more furniture at work. The ALJ noted that claimant’s account of the accident contained “too many gaps, contradictions and inconsistencies to accept with any degree of assurance.”
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Noe Raul Candia vs. T J Enterprises; and/or Employers’ Mutual Casualty Company
Case Number – 060416
Court/Judge – Holley
Verdict /Settlement – Order, 03/07
Amount – Ruling in favor of worker. The ALJ ruled that claimant was not a physician and therefore should not be held to the standard of knowing the best practitioners to manage his medical care. The ALJ found that since Dr. Haggard did not treat claimant for the auto accident injuries, Dr. Haggard did not exceed the scope of industrial accident treatment. The ALJ therefore ordered employer/carrier to pay claimant’s medical expenses, including the costs of the treatment provided by Dr. Haggard; employer/carrier must also pay for claimant’s future recommended medical care. Because claimant was released to return to full-duty work six weeks after he was injured, the ALJ dismissed his claims for temporary total disability benefits and temporary partial disability benefits for periods after this date with prejudice. Because claimant has not yet reached medical stability, the ALJ dismissed his claim for permanent partial disability benefits without prejudice as unripe for adjudication. Claimant may apply again when he reaches medical stability and receives a permanent whole-person impairment rating.
Injuries – Claimant was diagnosed with a non-displaced fracture at the base of the first phalangeal segment of the right third finger.
Attorney(s) - Plaintiff – Jose A. Loayza of the Law Office of Jose A. Loayza
Attorney(s) - Defense – Bret A. Gardner of Blackburn & Stoll
Expert Witness(es) - Plaintiff – Dr. Haggard, DC
Damages – Claimant sought benefits for past medical expenses and recommended medical care, temporary total disability benefits, temporary partial disability benefits
Facts/Contentions – Claimant was injured when he pinched his right hand between the drywall he was installing and a 2x4 stud.
Employer/carrier acknowledged that the accident occurred, but disputed the claim for treatment with Dr. Haggard. They contended that the chiropractic treatment exceeded the scope of industrial accident treatment because Dr. Haggard also treated claimant for injuries sustained in a non-industrial automobile accident. The medical record showed that Dr. Haggard treated claimant only for the industrial accident, while his partner, Dr. Barton, treated that automobile-accident injuries. Employer/carrier then contended that claimant should not have consulted a chiropractor for a fracture injury; instead, they claimed, he should have seen an orthopedist.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Evan D. Smith vs. Lodestar Energy; and Utah Property & Casualty Guaranty Fund
Case Number – 200254
Court/Judge – Marlowe
Verdict /Settlement – Order, 03/07
Amount – Ruling in favor of worker. When employer/carrier did not submit notice of intent to file a rehabilitation plan within 30 days as allowed by Utah law, the ALJ issued this final order confirming her earlier tentative finding of permanent and total disability. The ALJ ordered employer/carrier to pay claimant $433 per week, starting on 01/03/00 and continuing for 312 weeks. After that time, these payments shall be reduced by 50% of any Social Security retirement benefits claimant receives. Accrued benefits are due and payable in a lump sum plus interest and less attorney’s fees, which are to be deducted from the accrued amount and sent directly to claimant’s attorney.
Employer/carrier shall receive a credit offset for any temporary total disability compensation, temporary partial disability compensation or permanent partial disability compensation already paid for this industrial accident.
Injuries – Claimant suffered serious injuries which left him permanently and totally disabled.
Attorney(s) - Plaintiff – Phillip B. Shell of Day, Shell & Liljenquist
Attorney(s) - Defense – S. Grace Acosta of Dunn & Dunn
Facts/Contentions – Claimant contended that his industrial accident of 01/03/00 left him permanently and totally disabled.
Employer/carrier denied permanent total disability.
The ALJ held an evidentiary hearing on the claim and issued a tentative finding of permanent total disability on 08/31/06. Employer/carrier appealed. The Labor Commission Appeals Board reviewed the case and confirmed the ALJ’s order. Utah law says that after the ALJ issues a tentative finding of permanent and total disability, the ALJ must allow employer/carrier 30 days in which to submit notice of intent to file a retraining/re-employment//rehabilitation plan. If this notice is submitted, the ALJ must allow employer/carrier further time in which to submit the actual plan. If no notice is submitted, the ALJ may then issue a final finding of permanent and total disability and order employer/carrier to pay benefits.
ORDER ON REVIEW
Case Type – WA; Work-related injury claim
Case Name – Corey Rogers vs. Home Depot (self-insured)
Case Number – 060235
Court/Judge – This order was issued by Labor Commissioner Sherrie Hayashi.
Verdict /Settlement – Order, 03/07
Amount – Ruling in favor of worker. The Commissioner reviewed the case and stated that a conflict between medical opinions must exist in order to warrant medical-panel referral. The Commissioner found that Dr. Chung’s opinion was not sufficient to create a medical controversy warranting the appointment of a medical panel. The Commissioner therefore accepted Dr. Jevsevar’s opinion that claimant’s carpal tunnel syndrome was industrially caused; she upheld and confirmed the ALJ’s order awarding benefits.
Injuries – Claimant suffered bilateral carpal tunnel surgery and underwent corrective surgery.
Attorney(s) - Plaintiff – Rick D. Bonewell of Bonewell Morris & Associates, St. George
Attorney(s) - Defense – Theodore E. Kanell of Plant, Christensen & Kanell
Expert Witness(es) - Plaintiff – Dr. Jevsevar
Expert Witness(es) - Defense – Dr. Chung–independent medical evaluation (IME) physician
Facts/Contentions – Claimant contended that his work activities for self-insured employer caused his bilateral carpal tunnel syndrome. He worked as a truck driver, loaded and unloaded the truck, stocked shelves and pulled orders. Dr. Jevsevar opined that claimant’s work activities caused his carpal tunnel syndrome.
Self-insured employer denied liability. Dr. Michael Chung, employer’s independent medical evaluation (IME) physician, stated that he did not have enough information to form an opinion as to whether claimant’s carpal tunnel syndrome was work-related.
ALJ Sessions, who heard the case, issued a finding that the carpal tunnel was work-related and awarding benefits to claimant. Employer appealed to the Labor Commissioner, arguing that the ALJ should have referred the case to a medical panel.
WORK INJURY CLAIM
Case Type – WA; Work-related injury claim
Case Name – Steven A. Gailey vs. BMC West; and/or ACE American Insurance Company
Case Number – 061169
Court/Judge – La Jeunesse
Verdict /Settlement – Order, 03/07
Amount – Ruling in favor of worker. Judge La Jeunesse declared employer/carrier in default and accepted claimant’s affidavit regarding his weekly wages; marital status; number of children; time off work and impairment rating, if any; and travel expenses incurred while seeking medical treatment. The ALJ used this information in calculating benefits. The ALJ ordered employer/carrier to pay claimant $487 per week in temporary total disability benefits. Payments shall run from 04/26/06 until claimant stabilizes medically from his industrial injury, receives 312 weeks of benefits, or returns to work full-time at the same wage he was earning at the time of the accident. The accrued portion of these benefits, totaling $22,889, is due and payable in a lump sum plus 8% interest and less attorney’s fees, which are to be deducted from these benefits and paid directly to claimant’s attorney. Since claimant was never on light-duty work, the ALJ dismissed his claim for temporary partial disability benefits without prejudice as unripe for adjudication. Since claimant has not yet stabilized medically from his industr
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