Mitchell v. Labor Commission

2015 UT App 94
_________________________________________________________

THE UTAH COURT OF APPEALS

LAURIE L. MITCHELL,
Petitioner,
v.
LABOR COMMISSION, MILLIKEN & CO.,
AND LIBERTY MUTUAL,
Respondents.

Memorandum Decision
No. 20131153-CA
Filed April 16, 2015

Original Proceeding in this Court

Virginius Dabney and Robert W. Ickes,
Attorneys for Petitioner

Jaceson R. Maughan, Attorney for Respondent
Labor Commission

Dori K. Petersen, Attorney for Respondents
Milliken & Co. and Liberty Mutual

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and KATE A.
TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Laurie L. Mitchell was an employee of Milliken & Co., a
St. George textile company. In 2007, she was treated for pain and
tendon impingement in her right shoulder. The following year,
she suffered an injury to her right shoulder at work when she
attempted to throw a rope over the rollers of a fabric-winding
machine. At that time, Mitchell was diagnosed with an acute tear
of her right rotator cuff and chronic injury to the tendons of her
Mitchell v. Labor Commission

rotator cuff. After this accident, Mitchell applied for workers’
compensation benefits. The Labor Commission denied Mitchell’s
application, reasoning that her preexisting shoulder condition
had contributed to her injury and that she had not shown that
her work activities were an unusual exertion that increased her
risk of aggravating that preexisting condition. She now seeks
judicial review of the Commission’s decision.

¶2 Generally, an employee is entitled to workers’
compensation benefits if she can demonstrate that she was
injured by an accident at her workplace ‚arising out of and in
the course of [her] employment.‛ Utah Code Ann. § 34A-2-401(1)
(LexisNexis 2005). The Utah Supreme Court has explained that
to show that an accident ‚aris*es+ out of [and] in the course of
employment,‛ the employee must demonstrate that the
conditions or activities of her job were both the medical and
legal cause of the injury. Murray v. Labor Comm’n, 2013 UT 38,
¶¶ 44–45, 308 P.3d 461 (second alteration in original) (citation
and internal quotation marks omitted). For a claimant who does
not suffer from a preexisting condition that contributes to the
injury, the medical and legal causation requirements are
identical and the employee need only prove medical causation.
Id. ¶ 45. However, where the claimant has a preexisting
condition that contributes to the injury, the claimant must show
that ‚the employment contributed something substantial to
increase the risk [she] already faced in everyday life because of
[her] condition,‛ usually by demonstrating that the activities or
conditions of her work were ‚unusual or extraordinary‛ as
compared to ‚the usual wear and tear and exertions of
nonemployment life.‛ Id. ¶¶ 46, 48 (citations and internal
quotation marks omitted).

¶3 Mitchell raises three issues in her petition for judicial
review. First, she argues that she should not have been required
to demonstrate an ‚unusual exertion‛ in order to prove that her
workplace accident was the legal cause of her injury. ‚*W+here
the claimant suffers from a preexisting condition which

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Mitchell v. Labor Commission

contributes to the injury, an unusual or extraordinary exertion is
required to prove legal causation.‛ Allen v. Industrial Comm'n,
729 P.2d 15, 26 (Utah 1986). Mitchell argues that ‚*n+o medical
opinion exists in this case that establishes‛ that Mitchell’s
preexisting condition contributed to her work injury. We
disagree.

¶4 ‚We must uphold the Commission’s factual findings if
such findings are supported by substantial evidence based upon
the record as a whole.‛ Estate of Reitz v. Labor Comm'n, 2014 UT
App 290, ¶ 5, 341 P.3d 257 (citation and internal quotation marks
omitted). The Commission found that ‚Mitchell had a pre-
existing right-shoulder condition that contributed to her work
injury.‛ The Commission’s finding is supported by the
uncontradicted medical opinion of Milliken’s medical expert,
who opined that Mitchell’s ‚pre-existing impingement
syndrome certainly contributed to the subsequent right shoulder
problems‛ and that Mitchell’s injury was ‚an industrial
aggravation of a pre-existing right shoulder condition.‛ We
therefore conclude that the finding is supported by substantial
evidence and, accordingly, that the Commission did not err in
determining that Mitchell needed to show an unusual or
extraordinary exertion to prove legal causation. See id.; see also
Allen, 729 P.2d at 26.

¶5 Next, Mitchell argues that the Commission erred in
concluding that throwing the rope over the winding machine
did not constitute an unusual exertion. In evaluating whether
Mitchell’s employment activity involved an unusual or
extraordinary exertion, we must consider ‚the totality of the
circumstances‛ of the employment activity, ‚including the
employee’s exertions and the workplace conditions.‛ Murray,
2013 UT 38, ¶ 47. We then decide whether the employment
activity is ‚objectively unusual or extraordinary.‛ Id. ¶ 48. In
doing so, we must ‚compare the activity that precipitated the
employee’s injury with the usual wear and tear and exertions of
nonemployment life.‛ Id. (citation and internal quotation marks

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omitted). The focus of this inquiry is on ‚what typical
nonemployment activities are generally expected of people in
today’s society, not what this particular claimant is accustomed
to doing.‛ Id. (citation and internal quotation marks omitted).

¶6 The parties do not dispute the factual circumstances of
Mitchell’s injury as found by the Commission:

Mitchell tried to throw a rope upwards and over
one of the machine’s rollers, which was
approximately 15 feet off the ground. The entire
weight of the rope was less than 10 pounds and the
portion [Mitchell] was throwing weighed about
two pounds. [Mitchell] twice attempted to throw
one end of the rope over the roller without success.
On the third attempt, she threw the rope
underhand and felt a tearing sensation in her right
shoulder.

‚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. For example, our courts have recognized that moving a
two-hundred-pound sign, jumping into an eight-foot hole at
thirty-minute intervals, and continually gripping a high-pressure
hose are unusual activities. Id. However, enduring minor force
or jostling and carrying loads of fifteen pounds or more involve
exertions ‚comparable to nonemployment activities generally
expected in today’s society.‛ Id. ¶ 53 (noting that travelers
generally carry luggage or bags heavier than fifteen pounds).
‚Typical activities and exertions‛ 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.‛ Allen, 729
P.2d at 26.

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Mitchell v. Labor Commission

¶7 The Commission determined that Mitchell’s work activity
was not unusual or extraordinary. The ALJ characterized the
activity as ‚throwing a light rope up and over a roller,‛ and
concluded that this activity was less strenuous than a number of
common nonemployment exertions. The ALJ determined that
the action was similar to casting a fishing line, throwing a rope
to secure a load in a truck or trailer, or throwing a rope over a
branch to hang a child’s swing. The ALJ determined that
throwing the rope required less exertion than lifting a child up
or lifting luggage into an overhead bin on an airplane. In
affirming the ALJ’s decision, the Commission largely rejected the
ALJ’s comparisons, explaining that the activities identified by
the ALJ were either dissimilar to the ‚sudden upward rotation of
the shoulder‛ involved here or not sufficiently common
nonwork activities. The Commission instead analogized
Mitchell’s rope toss to shaking out a rug or bowling, concluding
that these are common nonemployment activities that involve
similar exertions.

¶8 Because ‚‘unusualness’ . . . is an objective legal standard
that we are in a better position to analyze than the Commission,‛
we must determine whether the circumstances of Mitchell’s
injury were unusual without deference to the Commission’s
decision. Murray v. Labor Comm'n, 2013 UT 38, ¶ 40, 308 P.3d 461.
However, as the party seeking relief from the Commission’s
action, Mitchell bears the burden of demonstrating that the
Commission’s determination was erroneous. O'Rourke v. Utah
State Tax Comm'n, 830 P.2d 230, 232 (Utah 1992). We conclude
that she has failed to meet her burden here.

¶9 Mitchell argues that ‚the dynamics of her having to throw
[two pounds of rope] up approximately 15 feet off the floor and
over a winding machine is unusual.‛ While she faults the
Commission’s comparisons of this exertion to those involved in
bowling or shaking a rug as inexact or ill-defined, Mitchell does
nothing to demonstrate that her action in throwing the rope is
comparable to activities our courts have deemed unusual or

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Mitchell v. Labor Commission

extraordinary. She has not shown that throwing a small mass of
rope in the air is in the same class of exertion as moving a two-
hundred-pound sign or repeatedly jumping into an eight-foot
pit. See Murray, 2013 UT 38, ¶ 51. Indeed, she has failed to
explain how this activity involves a greater exertion than
handling full garbage cans or carrying a loaded suitcase, both of
which involve significantly greater static loads but are
considered ‚typical‛ exertions by our courts. See Allen v.
Industrial Comm’n, 729 P.2d 15, 26 (Utah 1986). Ultimately,
Mitchell simply has not demonstrated that the underhand throw
of a two-pound weight must be ‚presumed to have contributed
something substantial to increase the risk of injury‛ above and
beyond a normal, everyday activity or that the Commission
erred in concluding otherwise. See Murray, 2013 UT 38, ¶ 53
(citation and internal quotation marks omitted). Because she has
not met her burden to demonstrate that the Commission’s
determination was erroneous, we decline to disturb that ruling.

¶10 Last, Mitchell argues that Allen v. Industrial Commission,
729 P.2d 15 (Utah 1986), creates an ‚unworkable and outdated
standard that discriminates against disabled and elderly workers
with pre-existing conditions‛ and ‚should be reviewed for its
future application in workers compensation law.‛ ‚Vertical stare
decisis . . . compels a court to follow strictly the decisions
rendered by a higher court.‛ State v. Menzies, 889 P.2d 393, 399
n.3 (Utah 1994). ‚Under this mandate, lower courts are obliged
to follow the holding of a higher court . . . .‛ Id. Allen was
decided by the Utah Supreme Court in 1986, and the principles
embodied in Allen were reaffirmed by that court in Murray v.
Labor Commission, 2013 UT 38, 308 P.3d 461. This court must
‚follow strictly the decisions rendered by‛ the Utah Supreme
Court, Menzies, 889 P.2d at 399 n.3, and we are therefore not
empowered to revisit or depart from the Allen rule in workers’
compensation cases. Accordingly, we must reject Mitchell’s
invitation for us to do so.

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Mitchell v. Labor Commission

¶11 The Commission’s finding that Mitchell’s preexisting
condition contributed to her industrial accident is supported by
the record, and the Commission therefore correctly required
Mitchell to demonstrate an unusual or extraordinary exertion to
prove legal causation. Mitchell has failed to demonstrate error in
the Commission’s determination that her work activities did not
require an unusual or extraordinary exertion. And we cannot
depart from our supreme court’s precedent in Allen regarding
the application of the unusual-exertion doctrine in workers’
compensation cases. We therefore decline to disturb the
Commission’s ruling denying Mitchell’s claim for workers’
compensation benefits.

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20131153-CA 7 2015 UT App 94