JBS Carriers v. Labor Commission

2021 UT App 44
THE UTAH COURT OF APPEALS
JBS C ARRIERS AND A MERICAN Z URICH I NSURANCE C OMPANY ,
Petitioners,
v.
LABOR C OMMISSION AND DAVID HICKEY ,
Respondents.
Opinion
No. 20200226-CA
Filed April 15, 2021
Original Proceeding in this Court
Brad J. Miller and Rachel M. Konishi,
Attorneys for Petitioners
Gary E. Atkin and Kenneth E. Atkin,
Attorneys for Respondent David Hickey
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. O RME and D AVID N. M ORTENSEN concurred.
HARRIS, Judge:
¶1 	While on a long-haul trip as a truck driver for JBS Carriers
(JBS), David Hickey developed a blood clot in his left leg, parts
of which eventually migrated to his lungs. He later sought, and
was awarded, workers’ compensation benefits for pulmonary
and left leg problems associated with the blood clot. JBS and its
insurer seek judicial review of that award, contending that
Hickey’s employment was not the legal cause of his injuries, and
that the Utah Labor Commission (the Commission) improperly
determined otherwise. We agree with JBS, and therefore we set
aside 	the 	Commission’s order 	and 	remand 	the 	case 	to 	the
Commission for further proceedings.

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BACKGROUND1
¶2 	One evening in August 2016, Hickey began a multi-day
trip driving a commercial truck from Utah to California for JBS,
his employer since 2013. Hickey’s truck was outfitted with an
automatic transmission, meaning that Hickey could operate the
vehicle without using his left foot to depress a clutch. The truck
also came equipped with a sleeper cab, which Hickey could use
for rest breaks. On the first evening of the trip, Hickey drove for
thirty-seven minutes before stopping for fuel, then drove for
another two hours before stopping to sleep in his cab. On the
second day of the trip, Hickey drove for two short stretches in
the morning, took an eight-hour rest in his sleeper cab, and then
drove for just over seven hours without interruption, arriving at
his first destination after midnight on the third day of the trip. At
this destination, Hickey’s truck was unloaded, and he rested
there for about eighteen hours before driving another two hours
to a second destination.
¶3 	By the end of the third day of the trip, Hickey started
feeling “dehydrated and not well,” and began experiencing
shortness 	of 	breath, 	which 	increased 	with 	movement, 	and
“swelling in his left leg.” After arriving at his second destination,
Hickey went to a local hospital where he was diagnosed with
“acute DVT of the lower left extremity.” DVT stands for “deep
vein thrombosis,” which is a medical condition caused by the
development of a blood clot in a vein deep inside the body. See
Deep Vein Thrombosis, WebMD, https://www.webmd.com/dvt/w
hat-is-dvt-and-what-causes-it [https://perma.cc/4PKC-3KKU]. In
Hickey’s case, parts of the blood clot that had originally formed
1. “In reviewing an order from the Commission, we view the
facts in the light most favorable to the Commission’s findings
and recite them accordingly.” JBS USA v. Labor Comm’n, 2020 UT
App 86, n.1, 467 P.3d 905 (quotation simplified).

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in a vein in his left leg had broken off and migrated into the
blood vessels in his lungs, causing “severe bilateral pulmonary
emboli.” Pulmonary embolism occurs when a blood clot “that
travel[s] to the lung from deep veins in the legs” causes a
blockage in one of the lungs’ pulmonary arteries. See Pulmonary
embolism, 	Mayo 	Clinic, 	https://www.mayoclinic.org/diseases-
conditions/pulmonary-embolism/symptoms-causes/syc-2035464
7 [https://perma.cc/92KV-PBJV]. DVT coupled with pulmonary
embolism is a life-threatening condition, and doctors therefore
admitted 	Hickey 	to 	the 	hospital 	for 	treatment, 	where 	he
remained for three days. Upon discharge, hospital physicians
gave Hickey anticoagulants, referred him to his primary medical
doctor, and counseled him 	to lose weight; at the time, 	he
weighed over 340 pounds and had a body mass index of 55, and
was thus considered medically “super obese.” Hickey had also
developed DVT on another occasion some twenty-five years
earlier; on that occasion, the DVT occurred after a surgical
procedure.
¶4 	After 	being 	discharged 	from 	the 	California 	hospital,
Hickey was not cleared to return to commercial truck driving for
three months. In the interim, Hickey applied for temporary total
and permanent partial workers’ compensation benefits. In his
application, 	Hickey 	claimed 	that 	he 	sustained 	an 	industrial
injury—the DVT and resulting embolism (the Injury)—“[d]ue to
long periods of sitting in a truck” in August 2016. He did not
claim to have sustained the Injury from repetitive trauma. JBS
responded by asserting that there existed no causal link—either
medical or legal—between Hickey’s employment and the Injury,
and contended that the Injury “constitute[d] nothing more than
the continuing manifestation of a pre-existing condition.” After
two doctors assessed Hickey and gave conflicting opinions about
whether 	Hickey 	suffered 	from 	a 	preexisting 	condition 	that
contributed to the Injury, an administrative law judge (ALJ)
referred the matter to a medical panel.

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¶5 	The doctors on the panel reviewed the relevant medical
records, as well as certain facts to which Hickey and JBS had
stipulated, and concluded that the “primary factor” that led to
the 	Injury 	was 	Hickey’s 	“super 	obesity.” 	The 	panel
acknowledged that Hickey’s “work as a commercial truck driver
. . . did marginally worsen” his DVT and pulmonary embolism,
but opined that Hickey’s “super obesity made him 6-10 times
more likely to develop a blood clot.” The panel concluded by
stating that it did “not believe there [was] a 1:1 contribution” to
the 	Injury 	from 	his 	super 	obesity 	and 	from 	his 	long-haul
journey, because obesity is a more significant DVT risk factor
than commercial truck driving.
¶6 	Relying on the medical panel’s report, which he found
“thorough and well-reasoned,” the ALJ denied Hickey’s claim
for benefits. In so doing, the ALJ first determined that Hickey
suffered from a preexisting condition—super obesity—and that
this condition “contributed to the development of [Hickey’s]
blood 	clots.” 	He 	then 	concluded, 	citing 	Allen 	v. 	Industrial
Commission, 729 P.2d 15 (Utah 1986), that Hickey’s work-related
activities—which 	the 	ALJ 	characterized 	as 	“spending 	long
periods of time sitting . . . without using his left foot”—did not
qualify as the legal cause of the Injury under Utah law, because
those 	activities 	were 	“not 	. 	. 	. 	unusual 	or 	extraordinary”
exertions. See id. at 26.
¶7 	Hickey then asked the Commission to review the ALJ’s
decision. In Hickey’s motion for review, he raised two main
arguments: (1) that the medical panel was not qualified to render
its decision; and (2) that the ALJ erroneously concluded that a
preexisting condition contributed to the Injury, and that Hickey
should therefore not have been required to meet the Allen
standard for legal causation. Notably, Hickey did not make any
argument, in the alternative or otherwise, that he could satisfy
the Allen standard in the event it applied to his case; specifically,
he did not attempt to claim that sitting for long periods of time

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while driving his truck during the August 2016 trip was an
unusual or extraordinary exertion that would satisfy Allen.
¶8 	After review, the Commission found it unnecessary to
address the threshold question of whether Hickey suffered from
a preexisting condition that contributed to the Injury, because it
determined, sua sponte, that “even if the more stringent [Allen]
standard applies to Mr. Hickey’s claim, he me[t] such standard
in light of the work activity that precipitated [the Injury].” The
Commission relied on its own precedent to conclude that the
activity of “driving for more than six hours without a break and
then driving for almost two and a half hours more later in the
same day involves an unusual or extraordinary exertion.” The
Commission then set aside the ALJ’s order, and remanded the
matter to the ALJ for additional proceedings.
¶9 	On remand, the ALJ issued a second order that reaffirmed
its earlier conclusion that Hickey suffered from a preexisting
condition that contributed to the Injury, but also concluded—as
determined by the Commission—that Hickey could show both
legal 	causation 	and 	medical 	causation. 	The 	ALJ 	therefore
awarded Hickey the benefits he requested.
¶10 	JBS 	appealed 	the 	ALJ’s 	second 	decision 	to 	the
Commission, 	arguing 	that 	the 	Commission 	overstepped 	its
bounds by sua sponte evaluating legal causation under the Allen
standard, 	and 	asserting 	that 	Hickey 	could 	not 	meet 	that
standard 	in 	any 	event. 	The 	Commission 	rejected 	JBS’s
arguments. With regard to legal causation, the Commission
concluded that driving a commercial truck is unlike typical
nonemployment activities, such as personal travel or watching
television for long periods of time, because commercial truck
driving gives the worker “limited opportunity” to move and is
“more complex and demanding than operating or traveling in a
personal automobile.” The Commission therefore affirmed the
ALJ’s award of benefits to Hickey.

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ISSUES AND STANDARDS OF REVIEW
¶11 	JBS now seeks judicial review of the Commission’s award,
and 	asks 	us 	to 	examine 	two 	particular 	aspects 	of 	the
Commission’s decision, both of which concern legal causation.
First, JBS asserts that, by failing to raise the issue in his first
motion for review before the Commission, Hickey failed to
preserve (or waived his right to seek review of) the question of
whether 	long-haul 	truck 	driving 	constitutes 	an 	unusual 	or
extraordinary exertion under Allen v. Industrial Commission, 729
P.2d 	15 	(Utah 	1986), 	and 	asserts 	that 	the 	Commission
overstepped its bounds by addressing the issue sua sponte.
Second, JBS challenges the merits of the Commission’s legal
causation determination, asserting that the Injury was not the
result of any unusual or extraordinary workplace exertion.
¶12 	We need not tackle the first issue, however, because we
ultimately agree with JBS on the merits of the legal causation
question. Accordingly, in this case we exercise our prerogative to
presume, without deciding, that the Allen issue was preserved
and 	that 	the 	Commission 	did 	not 	overstep 	its 	bounds 	by
addressing 	it.2 See 	State 	v. 	Kitches, 	2021 	UT 	App 	24, 	¶ 	28
2. We also note some dissatisfaction with the parties’ briefing on
the question of whether, and under what circumstances, the
Commission may consider an issue sua sponte. Neither party
cited or discussed Hilton Hotel v. Industrial Commission of Utah,
897 P.2d 352 (Utah Ct. App. 1995), or Chevron U.S.A., Inc. v. Utah
State 	Tax 	Commission, 	847 	P.2d 	418 	(Utah 	Ct. 	App. 	1993),
disapproved of on other grounds by King v. Industrial Commission of
Utah, 850 P.2d 1281, 1284 (Utah Ct. App. 1993), a line of cases in
which we held that administrative tribunals’ ability to consider
new issues sua sponte is limited. See Hilton, 897 P.2d at 356–57;
Chevron, 847 P.2d at 420–21. Moreover, neither side discussed the
potential tension between that line of cases and other cases
(continued…)

JBS Carriers v. Labor Commission
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(explaining that, in the interests of judicial economy, “if the
merits of a claim can easily be resolved in favor of the party
asserting that the claim was not preserved, we readily may opt to do
so without addressing preservation”). We therefore proceed
directly to the merits of the legal causation question, and confine
our analysis to the second issue JBS raises.
¶13 	With 	regard 	to 	that 	second 	issue, 	we 	review 	the
Commission’s legal causation determinations nondeferentially.
See Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 40, 308 P.3d 461
(stating 	that 	“the 	Commission’s 	decision 	here 	that 	[the
employee] failed to establish legal cause warrants nondeferential
review” because “the ultimate question is the legal effect of the
facts,” a question that “depends on the[] unusualness” of “a
(…continued)
indicating that district courts (and, by extension, administrative
tribunals) may, under some circumstances and provided that
briefing 	opportunities 	are 	afforded 	to 	the 	parties, 	consider
matters sua sponte, see Doyle v. Doyle, 2011 UT 42, ¶ 52, 258 P.3d
553; cf. Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 42, 361 P.3d 63
(determining that there is no preservation problem “[w]here a
district court itself raises and then resolves an issue sua sponte,”
because 	in 	such 	a 	situation 	the 	court 	“obviously 	had 	an
opportunity to rule on the issue”), and between that first line of
cases and the apparent obligation of courts and administrative
tribunals to act sua sponte to avoid plain error, see, e.g., Utah
Chapter of Sierra Club v. Air Quality Board, 2009 UT 76, ¶¶ 26–28,
226 P.3d 719 (explaining that an administrative agency can
commit plain error if it fails to address, sua sponte, an “obvious”
and “harmful” error). Under these circumstances, and given that
we adjudge the Commission’s decision incorrect on its merits,
we deem it particularly appropriate to save for another day a
thorough discussion of whether, and under what circumstances,
the Commission may address issues sua sponte.

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given set of facts,” and “unusualness—like reasonableness—is
an objective legal standard that we are in a better position to
analyze than the Commission” (quotation simplified)).
ANALYSIS
¶14 	The Utah Workers’ Compensation Act provides that an
employee injured “by accident arising out of and in the course of
the employee’s employment . . . shall be paid . . . compensation
for loss sustained on account of the injury.” Utah Code Ann.
§ 34A-2-401(1)(a) (LexisNexis 2019). Interpreting this language in
a previous iteration of the same statute, our supreme court has
noted 	that 	there 	are 	“two 	prerequisites 	for 	a 	finding 	of 	a
compensable injury” in workers’ compensation cases. See Allen v.
Indus. Comm’n, 729 P.2d 15, 18 (Utah 1986). “First, the injury
must be ‘by accident.’” Id. (quotation simplified). “Second, the
language ‘arising out of [and] in the course of employment’
requires that there be a causal connection between the injury and
the employment.” Id. (quotation simplified). In this case, JBS
does not assert that the Injury occurred other than “by accident,”
and therefore only the second prerequisite—regarding causal
connection—is at issue here.
¶15 	Our supreme court has “adopted a two-part test for
establishing a causal connection”; that test requires a claimant to
“establish that the conditions or activities of [the] job were both
the medical cause and the legal cause of [the] injury.” See Murray
v. Utah Labor Comm’n, 2013 UT 38, ¶ 45, 308 P.3d 461. In
instances where 	no preexisting 	condition 	contributes to 	the
injury, a claimant “need only prove medical causation.” Id. (also
stating that, for claimants without preexisting conditions, “the
medical 	and 	legal 	causation 	requirements 	are 	one 	and 	the
same”). But in cases where a worker’s preexisting condition
contributes to the workplace injury, the worker must also show
that the workplace activities were the legal cause of the worker’s
injuries. See id. ¶¶ 45–46.

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¶16 	In this case, the ALJ in an initial ruling determined that
Hickey 	had 	a 	preexisting 	condition—super 	obesity—which
contributed to his blood clot, and therefore determined that
Hickey needed to show legal causation in order to recover. The
ALJ then concluded that Hickey could not make that showing,
and on that basis rejected Hickey’s claim 	for benefits. 	The
Commission, in reviewing the ALJ’s decisions, determined that
it did not need to grapple with the threshold factual question
about 	whether 	Hickey 	had 	a 	preexisting 	condition 	that
contributed to his injuries, because it determined that Hickey
could make the necessary showing of legal causation in any
event. On that basis, the Commission reversed the ALJ and
eventually sustained Hickey’s claim.
¶17 	In our analysis, given that we review the Commission’s
decision and not the ALJ’s, see Utah Code Ann. § 34A-2-801(9)(a)
(stating that we review “the decision of the commissioner or
Appeals Board”), we begin by examining the merits of the
Commission’s decision about whether Hickey can satisfy the
Allen standard for legal causation. Because we determine that he
cannot, 	it 	then 	becomes 	necessary 	to 	discuss 	the 	threshold
question the Commission avoided: whether Hickey even needs
to show legal causation in the first place. Our analysis proceeds
in that order.
A
¶18 	As 	our 	supreme 	court 	has 	explained, 	a 	“heightened
showing 	of 	legal 	cause 	is 	necessary” 	in 	cases 	where 	an
employee’s preexisting condition contributes to the injury. See
Murray, 2013 UT 38, ¶ 46 (quotation simplified). This heightened
showing 	serves 	“to 	distinguish 	those 	injuries 	which 	(a)
coincidentally occur at work because a preexisting condition
results in symptoms which appear during work hours without
any enhancement from the workplace, and (b) those injuries
which occur because some condition or exertion required by the

JBS Carriers v. Labor Commission
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employment 	increases 	the 	risk 	of 	injury 	which 	the 	worker
normally faces in [the worker’s] everyday life.” Allen, 729 P.2d at
25 	(emphasis 	added). 	This 	distinction 	is 	important 	because
“[o]nly the latter type of injury is compensable.” Id. In many
cases, “the required workplace enhancement” can be “supplied
by” demonstrating that the conditions of employment required
“an exertion greater than that undertaken in normal, everyday
life.” See Murray, 2013 UT 38, ¶ 47 (quotation simplified); see also
Allen, 729 P.2d at 25 (stating that, to show legal causation, an
employee 	must 	“show 	that 	the 	employment 	contributed
something substantial to increase the risk [the employee] already
faced in everyday life because of [the preexisting] condition”).
¶19 	Evaluating the merits of a worker’s legal causation claim
involves a two-step process: “first, we must characterize the
employment-related activity that precipitated the [employee’s]
injury, taking into account the totality of the circumstances; and
second, we must determine whether this activity is objectively
unusual or extraordinary.” Murray, 2013 UT 38, ¶ 48. The first
step is a factual inquiry, id. ¶ 49, and in this case does not
involve a matter of dispute. The Commission described the
relevant portion of Hickey’s employment activity as “driving for
more than six hours without a break and then driving for almost
two and a half hours more later in the same day.” Additionally,
the Commission noted that Hickey’s truck “had an automatic
transmission that did not require use of his left leg to engage the
truck’s pedals,” and noted that Hickey “would usually remain in
the driver’s seat as his truck was being loaded and unloaded,”
which meant “that his driving time alone did not fully account
for the time he spent sitting in the truck.” However, no party
offered any evidence that Hickey’s employment duties required
him to drive for any particular length of time before taking a
break. And although operation of his particular truck did not
necessitate the use of his left leg, Hickey offered no evidence that
his employment duties required him to keep his leg motionless
while 	driving. 	Likewise, 	although 	Hickey 	testified 	that 	he

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usually remained inside the cab of his truck during loading and
unloading, the only evidence he offered in this regard was that
“[s]ome shippers and receivers had rules in place [that] required
the driver to remain 	inside the truck” during loading and
unloading. The record before us contains no evidence that the
shippers and receivers on this particular trip required him to
stay in the truck while it was being loaded and unloaded, and in
any case the record contains no evidence that he was at any
point 	prevented 	from 	moving 	about 	inside 	the 	truck—for
instance, to stretch in place, or to move into the sleeper cab to
rest or stretch—during loading and unloading.3
¶20 	The second step in evaluating a worker’s legal causation
claim is to compare the level of exertion required by the worker’s
employment duties to the “typical nonemployment activities
[that] are generally expected of people in today’s society.” Id.
¶ 48 	(quotation 	simplified). 	If 	the 	activities 	and 	exertions
required 	by 	the 	worker’s 	job, 	viewed 	in 	their 	totality, 	are
objectively unusual or extraordinary when compared to the
activities of daily living, then the workplace activities will be
considered 	to 	have 	“contributed 	something 	substantial 	to
increase the risk [the employee] already faced in everyday life
because 	of 	[the 	preexisting] 	condition,” 	and 	therefore 	the
workplace activities will be considered the legal cause of the
3. In describing the workplace activity that led to the Injury, we
focus on the August 2016 trip that Hickey identified, in his
application for benefits, as the source of the Injury. As noted,
Hickey’s claim was that the Injury was caused by this trip, and
not by the cumulative effect of repetitive lengthy truck travel.
Our focus is therefore on the particulars of the specific trip in
question. See Acosta v. Labor Comm’n, 2002 UT App 67, ¶¶ 31–34,
44 P.3d 819 (declining to address any repetitive trauma claim
where the claimant had not raised any such claim, and instead
focusing on the specific issue raised by the claimant).

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employee’s injury. See Allen, 729 P.2d at 25; see also Murray, 2013
UT 38, ¶¶ 47, 52–53.
¶21 	By way of example, our supreme court noted in Allen that
“[t]ypical activities and exertions expected” of people in modern
life “include taking full garbage cans to the street, lifting and
carrying 	baggage 	for 	travel, 	changing 	a 	flat 	tire 	on 	an
automobile, lifting a small child to chest height, and climbing the
stairs in buildings.” See 729 P.2d at 26; see also Murray, 2013 UT
38, ¶ 53 (stating that “people are generally expected to travel in
everyday life”). On the other hand, “Utah courts have deemed
employment activities to be ‘unusual’ or ‘extraordinary’ when
they 	require 	an 	employee 	to 	endure 	jumping, 	lifting 	great
weight, or repetition.” Murray, 2013 UT 38, ¶ 51; see also Fastenal
v. 	Labor 	Comm’n, 	2020 	UT 	App 	53, 	¶¶ 	2, 	17, 	463 	P.3d 	90
(determining that a truck driver’s repeated use, over a period of
more than a year, of his left foot to depress a clutch when
driving 	“for 	approximately 	eleven 	hours 	per 	day” 	on 	his
workdays, constituted unusual and extraordinary exertion, and
was the legal cause of a “pressure ulcer” on the driver’s left
heel). Indeed, even activities that might otherwise seem rather
typical may be deemed “unusual or extraordinary” when the
requirements of a job demand that an employee execute the
activities in an “awkward manner,” see Peterson v. Labor Comm’n,
2016 UT App 12, ¶¶ 15–16, 367 P.3d 569 (determining that lifting
a “significant amount of weight” in an “awkward manner” can
constitute unusual or extraordinary activity), or under “exigent
circumstances,” see JBS USA v. Labor Comm’n, 2020 UT App 86,
¶¶ 	16–19, 	467 	P.3d 	905 	(explaining 	that 	a 	forty-inch 	jump
“constituted 	an 	unusual 	exertion” 	because 	“the 	exigent
circumstances surrounding the jump caused” the employee to
jump in an abnormal manner).
¶22 	Here, 	the 	Commission 	determined 	that 	Hickey’s
activities—driving for some seven hours in one sitting, then
driving for another two and a half hours after a break, all

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without 	using 	his 	left 	leg—“involved 	an 	unusual 	or
extraordinary exertion over and above the usual wear and tear
and 	exertions 	of 	nonemployment 	life.” 	In 	so 	doing, 	the
Commission rejected JBS’s arguments that “driving a truck for
extended 	hours 	was 	comparable 	to 	driving 	a 	personal
automobile for extended hours,” taking a long international
flight, or “watching television for an extended amount of time.”4
4. In reaching its determination, the Commission relied heavily
on its own precedent. See Huskic v. Anexpress LLC, No. 08-0816,
2010 WL 8727461 (Utah Labor Comm’n May 25, 2010). In that
case, the Commission held that a driver who was in a truck for
“a total of 15 hours straight,” “first riding in the passenger’s seat
and then driving,” before suffering a stroke, had engaged in an
“unusual 	or 	extraordinary 	exertion”; 	the 	Commission
determined that “driving a semi-truck . . . is more demanding
and involved than driving a personal automobile.” Id. at *1, *3.
Here, in evaluating Hickey’s claim, the Commission was bound
to follow its earlier precedent. See Steiner Corp. v. Auditing Div. of
Utah State Tax Comm’n, 1999 UT 53, ¶ 12, 979 P.2d 357 (“The
holding of an agency adjudication, or the application of a rule of
law to the facts in that case, binds an agency in subsequent
decisions . . . .” (emphasis added)). But we, of course, are not so
bound. Cf. Ellis-Hall Consultants v. Public Service Comm’n, 2016
UT 34, ¶¶ 24–33, 379 P.3d 1270 (holding that “agency decisions
premised on pure questions of law,” while binding on the
agency itself, are “subject to non-deferential review” by the
judiciary, because “it is emphatically the province and duty of
the judicial department to say what the law is” (quotation
simplified)); 	see 	also 	Utah 	Code 	Ann. 	§ 	63G-4-403(4)(d)
(LexisNexis 2019) (“The appellate court shall grant relief . . . if,
on the basis of the agency’s record, it determines . . . the agency
has erroneously interpreted or applied the law . . . .”). And, for
the reasons discussed herein, we find the Commission’s analysis
in Huskic unpersuasive, at least as applied to this case.

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The Commission opined that “driving a truck is more complex
and 	demanding 	than 	operating 	or 	traveling 	in 	a 	personal
automobile,” and stated that Hickey had “limited opportunity
. . . to stretch, change position, or otherwise move about as one
would be able to while on a long flight or watching television.”
¶23 	We disagree with the Commission’s analysis. We first
take issue with the Commission’s statement that Hickey had
“limited opportunity” to stretch, change position, or take breaks.
There is simply no evidence, in the record before us, to support
that conclusion. As evidenced by the work logs, Hickey was
allowed to take breaks, and did so often while en route to his
assigned destinations; indeed, Hickey took more than two full
days 	to 	travel 	from 	Utah 	to 	California, 	indicating 	that 	his
delivery schedule was flexible. Hickey presented no evidence
that JBS put limits on how often, and for how long, he could stop
for a rest or stretch break; likewise, he presented no evidence
that the delivery requirements of the trip in question made it
impractical to take breaks. And while Hickey testified that he
“would usually remain in the driver’s seat as his truck was being
loaded 	and 	unloaded,” 	there 	is 	no 	evidence 	in 	the 	record
indicating that this was required of him on this particular trip, or
that he was otherwise prevented from moving around inside his
truck, including resting inside the sleeper cab, while his truck
was being loaded. And finally, while it is certainly true that
Hickey’s truck had an automatic transmission, and therefore had
no clutch that required action by Hickey’s left foot, it is also
true that no requirement of the job prevented Hickey from
stretching his inactive left leg while operating the truck with his
other limbs. Under Allen, we must focus on the “exertion required
by the employment.” See 729 P.2d at 25 (emphasis added). And
here, at least according to the record before us, the requirements
of the job left Hickey free to take regular breaks, and did not
require Hickey to sit entirely still for any particular length of
time.

JBS Carriers v. Labor Commission
20200226-CA 	15 	2021 UT App 44
¶24 	Next, and relatedly, we disagree with the Commission’s
determination 	that 	Hickey’s 	activities 	on 	the 	trip 	that
precipitated the Injury were materially different from activities
typically undertaken by people in modern life. See id. at 26.
While we acknowledge that operating a commercial truck is
somewhat 	more 	complicated 	than 	driving 	a 	personal
automobile, it is not the complexity of the activity that forms the
basis for Hickey’s claim here—instead, it is the sedentary nature
of long drives. And in this sense, we perceive no meaningful
distinction between sitting for a long time in a truck cab and
sitting for a long time in a passenger car, or sitting for a long
time in an airplane seat, or even sitting for a long time on a
couch in front of a television screen. It is not at all unusual or
extraordinary for people in everyday modern American life to
take long drives (say, Salt Lake City to Denver, Los Angeles, or
Phoenix) in passenger cars. And—at least before the onset of the
COVID-19 pandemic—it was not at all unusual or extraordinary
for people to take long-haul flights from the U.S. to, say, Europe
or Asia. And, in a world where “binge-watch” is now a defined
term 	in 	the 	Cambridge 	English 	Dictionary, 	see 	Binge-watch,
Cambridge Dictionary, https://dictionary.cambridge.org/us/dicti
onary/english/binge-watch 	[https://perma.cc/RB4V-TDHH], 	we
do not perceive it as unusual or extraordinary for people in
everyday life to sit sedentarily for several hours in front of a
television or computer screen.
¶25 	In the end, when we view the requirements of Hickey’s
employment during the trip in question, in their totality, we
perceive nothing unusual or extraordinary beyond the activities
experienced by ordinary people in everyday life “that could be
presumed to have contributed something substantial to increase
the 	risk 	of 	injury.” 	Murray, 	2013 	UT 	38, 	¶ 53 	(quotation
simplified). Accordingly, the Injury Hickey sustained was not
legally caused by the requirements of his employment with JBS,
and we set aside the Commission’s decision to the contrary.

JBS Carriers v. Labor Commission
20200226-CA 	16 	2021 UT App 44
B
¶26 	But our determination that the Injury was not legally
caused by the requirements of Hickey’s job brings back to the
fore the threshold question that the Commission, given its legal
causation determination, did not answer: does Hickey even need
to prove legal causation? If no preexisting condition contributed
to the Injury, then he does not; in that event, a simple showing of
medical causation will suffice. See id. ¶¶ 45–46; see also Cox v.
Labor 	Comm’n, 	2017 	UT 	App 	175, 	¶¶ 16, 	18, 	405 	P.3d 	863
(explaining that medical causation requires an employee to show
that the workplace injury was “a cause—as opposed to the
cause—of the condition requiring treatment”).
¶27 	In 	this 	case, 	the 	Commission 	made 	no 	findings 	or
conclusions regarding this threshold question, declining to reach
it given its conclusion that Hickey could make the necessary
legal causation showing if he had to. But the ALJ did address the
threshold question, specifically finding, based largely on the
medical panel’s report, that Hickey suffered from a preexisting
condition—super obesity—and that this condition “contributed
to the development of [Hickey’s] blood clots.”
¶28 	We 	do 	not 	directly 	review 	the 	decisions 	of 	an 	ALJ;
instead, 	as 	noted 	above, 	we 	review 	the 	decisions 	of 	the
Commission. See Utah Code Ann. § 34A-2-801(9)(a) (LexisNexis
2019) (stating that we review “the decision of the commissioner
or Appeals Board”); see also Par Elec. v. Labor Comm’n, 2017 UT
App 169, ¶¶ 24–25, 405 P.3d 842 (noting that we review the
Commission’s decision, not the ALJ’s, and rejecting an appellate
argument because it took issue with the ALJ’s reasoning and did
not directly “address the Commission’s reasoning”). In this case,
our 	determination 	that 	the 	Commission 	erred 	in 	its 	legal
causation 	ruling 	requires 	us 	to 	remand 	the 	case 	to 	the
Commission 	to 	consider 	the 	threshold 	question 	of 	whether
Hickey must even prove legal causation, and in grappling with

JBS Carriers v. Labor Commission
20200226-CA 	17 	2021 UT App 44
that question the Commission will need to decide whether to
adopt the ALJ’s finding that Hickey suffered from a preexisting
condition that contributed to the Injury. The Commission is, of
course, 	free 	to 	reject 	the 	ALJ’s 	finding 	and 	make 	its 	own
different or contrary finding. See Utah Code Ann. § 34A-1-
303(4)(a) (stating that the Commission may, among other things,
“reverse the findings” of an ALJ); see also JP’s Landscaping v. Labor
Comm’n, 2017 UT App 59, ¶ 13, 397 P.3d 728 (“The Commission
is the ultimate fact finder in workers’ compensation claims.”).
Nevertheless, in the interest of judicial economy, we elect to
briefly address the ALJ’s finding here, in the event that the
Commission, on remand, decides to adopt it.
¶29 	The burden of making the threshold showing—that legal
causation is even at issue—falls to the employer, who must
“prove medically that the claimant suffers from a preexisting
condition which contributes to the injury.” Utah Auto Auction v.
Labor Comm’n, 2008 UT App 293, ¶ 11, 191 P.3d 1252 (quotation
simplified). While there is no “brightline rule regarding this
evidentiary threshold,” the medical evidence must show that the
preexisting condition actually did contribute to the injury, and
not just indicate “a possibility” that it might have. See id. ¶¶ 12–
14 (quotation simplified). Because this is a factual issue, any
finding 	in 	this 	regard 	must 	be 	“supported 	by 	substantial
evidence.” Acosta v. Labor Comm’n, 2002 UT App 67, ¶ 29, 44 P.3d
819 (quotation simplified).
¶30 	In our view, the ALJ’s finding—that Hickey suffered from
a 	preexisting 	condition 	that 	contributed 	to 	the 	Injury—was
supported by substantial evidence, and a similar finding from
the Commission, if based on the same record, would be too. As
noted, 	the 	ALJ’s 	finding 	was 	based 	largely 	on 	the 	report
submitted 	by 	the 	medical 	panel, 	which 	evaluated 	Hickey,
reviewed conflicting medical opinions and medical records, and
considered studies regarding DVT in super obese individuals.
The panel concluded that the “primary factor” that led to the

JBS Carriers v. Labor Commission
20200226-CA 	18 	2021 UT App 44
Injury 	was 	Hickey’s 	“super 	obesity.” 	It 	acknowledged 	that
Hickey’s work as a long-haul truck driver was also a risk factor,
and 	“did 	marginally 	worsen” 	his 	DVT 	and 	pulmonary
embolism, 	but 	nevertheless 	concluded 	that 	Hickey’s 	“super
obesity made him 6-10 times more likely to develop a blood
clot.” The panel analyzed the relative contributions to the Injury
from Hickey’s super obesity and from Hickey’s employment as a
long-haul trucker, and concluded that it did “not believe there
[was] a 1:1 contribution” to the Injury from his super obesity and
from his long-haul journey, because super obesity is a more
significant DVT risk factor than commercial truck driving.
¶31 	Hickey asserts that the medical panel’s statements are too
inconclusive to form the basis for a solid factual finding. In
support of his position, Hickey cites Utah Auto Auction, a case in
which we determined that medical evidence pointing only to “a
possibility” 	that 	preexisting 	conditions 	contributed 	to 	the
accident was not enough to trigger the requirement that a
worker demonstrate legal causation. See 2008 UT App 293, ¶ 14
(quotation simplified). Hickey points to the conclusion reached
by his expert witness, who opined that Hickey’s blood clot was
caused by his long drive, and asserts that his expert’s “clear”
statement is the only actual evidence in the record regarding
whether 	a 	preexisting 	condition 	actually 	contributed 	to 	the
Injury. But the ALJ interpreted the panel’s report as making a
“determin[ation]” 	that 	Hickey’s 	“super 	obese 	preexisting
medical condition” actually “contributed to the development of”
his blood clots and DVT, rather than merely concluding that it
might 	have 	contributed. 	And 	this 	interpretation 	was 	a
reasonable one, supported by the language of the panel’s report,
in which the panel compared the “contribution[s]” made to the
Injury from both Hickey’s preexisting obesity and his long truck
ride, and concluded that Hickey’s obesity had made a greater
contribution. This contrasts sharply from the situation in Utah
Auto Auction, in which the medical opinion at issue consisted of
“equivocal and inconclusive statements,” and did not include a

JBS Carriers v. Labor Commission
20200226-CA 	19 	2021 UT App 44
conclusion regarding the existence of a preexisting condition,
much less its contribution to an injury. See id.
¶32 	After evaluating the conflicting medical opinions and the
panel’s report, the ALJ gave weight to the panel’s report because
he 	considered 	it 	“well-reasoned” 	and 	“the 	product 	of 	a
thorough, collegial and impartial review of the record.” And
based on this evidence, and his reasonable interpretation of it,
the 	ALJ 	specifically 	found 	that 	Hickey 	suffered 	from 	a
preexisting condition that contributed to the Injury, and that
therefore Hickey had to “meet the higher standard of legal
causation.” Under these circumstances, the ALJ’s finding was
supported by substantial evidence.
¶33 	On remand, the Commission will need to examine the
evidence and make its own finding, and if it makes a finding that
diverges from the ALJ’s, the parties will of course be free to seek
judicial review of that finding. But if the Commission chooses,
based on the same record submitted to us, to adopt the ALJ’s
finding in its entirety, we have here determined that such a
finding, on the part of the Commission, would be supported by
substantial evidence.
CONCLUSION
¶34 	The Commission erred in determining that the Injury was
legally caused by the requirements of Hickey’s work for JBS, and
we set aside its order on that basis. We remand this matter to the
Commission for further proceedings, including consideration of
the threshold question about whether Hickey even needs to
show legal causation in the first place.