Oliver v. Labor Commission

2013 UT App 301
_________________________________________________________
THE UTAH COURT OF APPEALS
ANGELA K. OLIVER,
Petitioner,
v.
LABOR COMMISSION AND EMPLOYERS’ REINSURANCE FUND,
Respondents.
SAFEWAY,
Petitioner,
v.
ANGELA K. OLIVER,
Respondent.
Opinion
No. 20121069-CA
Filed December 27, 2013
Original Proceedings in this Court
Gary E. Atkin and K. Dawn Atkin, Attorneys for
Petitioner Angela K. Oliver
Brad J. Miller, Attorney for Petitioner Safeway
Alan L. Hennebold and Jaceson R. Maughan,
Attorneys for Respondent Labor Commission
Edwin C. Barnes and Robert D. Andreasen,
Attorneys for Respondent Employers’
Reinsurance Fund
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES CAROLYN B. MCHUGH and STEPHEN L. ROTH concurred.
ORME, Judge:

Oliver v. Labor Commission
1. Employee passed away during the pendency of this proceeding,
but the parties agree that the claim for any benefits accruing prior
to her death survives.
20121069-CA 2 2013 UT App 301
¶1 In this consolidated case, Angela K. Oliver (Employee)1
seeks to overturn the decision of the Utah Labor Commission
Appeals Board denying her claim for permanent total disability
benefits. Safeway, which employed Employee years ago, challenges
the composition and impartiality of the medical panel. We set aside
the Board’s order and direct it to reconsider Employee’s claim in
accordance with the guidance offered in this opinion.
BACKGROUND
¶2 In March 1987, Employee injured her back in the course of
her employment with Safeway. As a result of this injury, a doctor
assigned Employee permanent work restrictions that prevented
Employee from returning to her job at Safeway. However,
Employee underwent vocational rehabilitation and began working
as a nurse in 1991. In April 2004, Employee again injured her back
while assisting a patient. Employee underwent fusion surgery in
June 2004 and was assigned further permanent work restrictions
that prevented her from returning to work as a nurse.
¶3 Employee filed a workers’ compensation claim based on the
April 2004 injury. This claim was referred to Dr. Alan Goldman as
a one-doctor medical panel. The panel concluded that Employee’s
impairment was caused by preexisting degenerative injuries, at
least some of which were related to her 1987 injury sustained while
working for Safeway. Her claim based on the 2004 incident was
denied because that incident—largely in view of the medical
panel’s conclusion—was not deemed to be the legal cause of her
back condition.
¶4 Employee then filed this claim based on the theory that her
current disability was the result of her 1987 injury sustained while
employed by Safeway. The Administrative Law Judge (ALJ)

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20121069-CA 3 2013 UT App 301
assigned to the case held an evidentiary hearing and referred the
“medical aspects of this case to a Commission medical panel for
evaluation.” Dr. Goldman was again the sole member of the
medical panel. The panel responded affirmatively to the ALJ’s
question, “Is there a medically demonstrable causal connection
between the petitioner’s low back condition and the March 11, 1987
industrial accident?” Safeway objected to the panel’s report on the
basis that the panel was not impartial because it consisted only of
Dr. Goldman, who had already opined on the same issue in the
previous case. The ALJ overruled Safeway’s objection to the
medical panel report and determined that Employee’s “current low
back condition arose out of her March 11, 1987 industrial accident.”
Safeway appealed to the Board, arguing that the ALJ erred in
failing to appoint an impartial medical panel and in finding
permanent total disability. The Board issued an order setting aside
the ALJ’s decision and remanding for further proceedings,
including referral to a new medical panel.
¶5 The ALJ again heard the case and again referred it to a
medical panel headed by Dr. Goldman, albeit with an instruction
that he could enlist others to join him. The panel, now consisting of
Dr. Goldman and an anesthesiologist with a specialty in pain
management, determined that Employee had “serious
aggravations” to her lower back following her 1987 injury. The
panel declared:
[I]t is virtually impossible to determine how much of
[Employee’s] current pain can be attributable to the
industrial accident of 1987 in question, although we
do feel that there is, to some degree, a causal
connection between [Employee’s] low back condition
and the 03-11-1987 industrial injury.
The ALJ subsequently decided that while there was some
connection between the 1987 and 2004 injuries, because Employee
“has the ability to learn new tasks as demonstrated by her
vocational history,” she was “not permanently and totally disabled
as the result of the March 11, 1987 industrial accident.”

Oliver v. Labor Commission
20121069-CA 4 2013 UT App 301
¶6 Employee then appealed to the Board, asking it to review
the ALJ’s denial of permanent and total disability compensation.
The Board reviewed the case under section 34A-2-413 of the Utah
Workers’ Compensation Act, see Utah Code Ann. § 34A-2-413(1)
(LexisNexis 2011) (delineating the requirements for an employee to
qualify for permanent total disability compensation), and found
that Employee’s 1987 industrial injury was not the “direct cause”
of her subsequent 2004 injury. The Board also noted that while the
medical panel “added a second member, it was not ‘new’ because
it did not consist of entirely different members from the original
panel.” However, because the Board denied Employee permanent
total disability benefits, it considered “it unnecessary to address
any problems with the medical panel or Safeway’s contention that
the panel was not impartial in the proceedings on remand.”
Employee requested reconsideration of this decision, noting that
section 34A-2-413 was not in effect at the time of Employee’s 1987
accident.
¶7 On reconsideration, the Board conceded that it had applied
a legal standard that was enacted after the initial workplace
accident and reevaluated Employee’s claim in light of what the
Board believed to be the correct legal standard, namely whether, in
the Board’s words, Employee’s 1987 accident “prevented her from
performing work of the same general character that she was doing
for Safeway or any other work she could do or learn to do.” See
United Park City Mines Co. v. Prescott, 393 P.2d 800, 801–02 (Utah
1964). The Board then found that because Employee had
undergone vocational rehabilitation following the 1987 accident
and worked as a nurse for almost fourteen years thereafter, she was
not entitled to permanent total disability compensation. Employee
seeks judicial review of that decision.
ISSUE AND STANDARD OF REVIEW
¶8 Employee argues that the Board applied the wrong legal
standard in determining her eligibility for permanent total
disability benefits. “Whether the [Board] applied the correct legal

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20121069-CA 5 2013 UT App 301
standard in making its determination is . . . a question of law,
which we review for correctness.” A & B Mech. Contractors v. Labor
Comm’n, 2013 UT App 230, ¶ 15, 311 P.3d 528.
ANALYSIS
¶9 Employee asserts that the Board applied an incorrect legal
standard when it found that she was not permanently and totally
disabled as a result of her 1987 industrial injury. The Board applied
the standard originally articulated in United Park City Mines Co. v.
Prescott, 393 P.2d 800 (Utah 1964). With regard to permanent total
disability claims, the Prescott court stated as follows:
[A] workman may be found totally disabled if by
reason of the disability resulting from his injury he
cannot perform work of the general character he was
performing when injured, or any other work which
a man of his capabilities may be able to do or to learn
to do . . . .
Id. at 801–02. The Board interpreted this standard to mean that
because Employee “was able to obtain the necessary training and
work [as a nurse] for many years following the 1987 accident,” she
was forever barred from bringing permanent total disability claims
based on that accident. While it is true that Employee would have
been barred under this rule from bringing a claim while she was
actually employed as a nurse, we disagree that her return to the
workforce forever precluded her from claiming permanent total
disability based on her original compensable injury.
¶10 Our decision in Intermountain Health Care, Inc. v. Board of
Review, 839 P.2d 841 (Utah Ct. App. 1992), supports this conclusion.
In Intermountain, an employee of Intermountain Health Care
suffered a compensable back injury in—coincidentally—1987. Id. at
842. The injury occurred while the employee was lifting a desk at
the request of her supervisor. Id. The employee was seen by several
specialists and treated conservatively over the course of

Oliver v. Labor Commission
2. We cite the codified version of the statute in effect at the time of
Employee’s original compensable injury.
20121069-CA 6 2013 UT App 301
approximately one year. Id. The employee subsequently found new
employment at Interwest Medical and worked there from October
1988 until April 1989. Id. However, she injured her back again in
April 1989 while bending over to pick up her four-month-old
grandchild. Id. at 842–43. Despite her ability to return to work in a
position “of the general character [she] was performing when
injured,” see Prescott, 393 P.2d at 801–02, we nonetheless concluded
that the ALJ properly found that her original 1987 industrial injury
was the cause of the subsequent aggravation of that injury in 1989,
Intermountain, 839 P.2d at 847–48. Thus, the mere occurrence of
vocational rehabilitation and a reentry into the workforce in
Intermountain did not forever bar a new workers’ compensation
claim based on the employee’s prior industrial accident.
¶11 Rather, when an individual experiences a subsequent
aggravation of an initial compensable workplace injury arising “out
of or in the course of his employment,” Utah Code Ann. § 35-1-45
(Michie Supp. 1987), the question of additional compensation2
hinges on whether the “‘subsequent injury is . . . a natural result of
a compensable primary injury.’” See Intermountain, 839 P.2d at 845
(emphasis in original) (quoting Mountain States Casing Servs. v.
McKean, 706 P.2d 601, 602 (Utah 1985) (per curiam)). Here, there is
no dispute that Employee had a compensable workplace accident
in 1987. Indeed, workers’ compensation benefits were paid to
Employee between 1987 and 1989. The key consideration, then, is
whether Employee’s subsequent 2004 injury is compensable as
being a “natural result” of the original 1987 injury.
¶12 Employee asserts—and the emphasis is hers—that a “basic
tenet of the applicable 1987 law was that once an [e]mployee is
injured by an industrial accident, expenses and impairments arising
from that injury are compensable” if “the pre-existing injury is a

Oliver v. Labor Commission
3. In making this argument, Employee appeals to the logic of
section 35-1-69 of the Utah Code, which was in effect at the time of
the 1987 injury. See Second Injury Fund v. Streator Chevrolet, Inc., 709
P.2d 1176, 1180–81 (Utah 1985) (noting that section 35-1-69 applies
where a preexisting injury is aggravated “to any degree”) (emphasis
in original). Section 35-1-69 then provided as follows:
(1) If an employee who has previously
incurred a permanent incapacity by accidental injury,
disease, or congenital causes, sustains an industrial
injury for which either compensation or medical care,
or both, is provided by this chapter that results in
permanent incapacity which is substantially greater
than he would have incurred if he had not had the
pre-existing incapacity, or which aggravates or is
aggravated by such pre-existing incapacity,
compensation . . . shall be awarded on the basis of
the combined injuries . . . .
For purposes of this section, . . . any
aggravation of a pre-existing injury, disease, or
congenital cause shall be deemed “substantially
greater” . . . .
Utah Code Ann. § 35-1-69 (Michie Supp. 1987) (emphasis added).
We agree that section 35-1-69, as the law in effect in 1987, would
apply if we were faced with an apportionment of payment between
those responsible for preexisting and new injuries, but the question
before us is whether there was permanent and total disability in
2004 as a result of Employee’s 1987 industrial injury.
20121069-CA 7 2013 UT App 301
cause of the ultimate disability.” Indeed, Utah courts have3
established that “once benefits are properly awarded, the employer
is responsible for ‘all medical[ costs] resulting from [the
compensable] injury,’ including costs resulting from subsequent
aggravations to the compensable workplace injury.” McKesson
Corp. v. Labor Comm’n, 2002 UT App 10, ¶ 21, 41 P.3d 468
(alterations in original) (quoting McKean, 706 P.2d at 602).
However, “responsibility for costs resulting from subsequent
aggravations to compensable workplace injuries is not automatic.
The claimant must first demonstrate that the subsequent

Oliver v. Labor Commission
20121069-CA 8 2013 UT App 301
aggravation is the ‘natural result’ of the primary workplace injury
or accident.” Id. ¶ 21 n.3 (quoting McKean, 706 P.2d at 602). “Stated
more precisely, the claimant must establish that the subsequent
aggravation is causally linked to the primary compensable injury.”
Id. ¶ 18 n.2.
¶13 The “natural result” inquiry is properly conducted through
“an analysis of the facts surrounding the subsequent injury and
analysis of the connection between the subsequent injury and the
original compensable industrial injury.” Intermountain, 839 P.2d at
846. And the relationship between the two events must be
established by a preponderance of the evidence. See Allen v.
Industrial Comm'n, 729 P.2d 15, 23 (Utah 1986) (“[T]he standard to
prove causal connection is [by a] preponderance of the evidence.”);
Large v. Industrial Comm’n, 758 P.2d 954, 956 (Utah Ct. App. 1988)
(same).
¶14 We conclude that the Board applied an incorrect legal
standard in concluding that Employee was not permanently and
totally disabled as a result of her 1987 industrial injury. As more
fully explained above, the key to properly making this
determination is not whether Employee went back to work after
1987 but whether her 2004 injury was a natural result of the 1987
injury. We are not best suited to make this determination in the
first instance. Rather, the Board is in the best position to analyze the
“facts surrounding [Employee’s] subsequent injury and . . . the
connection between the subsequent injury and the original
compensable industrial injury.” Intermountain, 839 P.2d at 846.
CONCLUSION
¶15 The Board’s decisions were made in the context of a
significant legal error as to the rule governing the claimed
aggravation of a primary compensable workplace injury.
Therefore, we set the Board’s order aside and direct it to reconsider

Oliver v. Labor Commission
4. In view of our disposition, we do not reach the other issues
before us. We do recognize, however, that Safeway argues in its
petition for review that a new medical panel should have been
appointed when the ALJ was so directed, not the same medical
panel with leave to invite the participation of additional doctors.
The Board recognized the problematic nature of a medical panel
that was not actually new, but found it unnecessary “to address
any problems with the medical panel or Safeway’s contention that
the panel was not impartial in the proceedings on remand.” While
we do not otherwise address this issue, we note that the Board may
find it prudent to renew its direction that a new medical panel be
appointed to consider the causal link between Employee’s 1987 and
2004 injuries. It may well be that Dr. Goldman’s objectivity in the
case at hand is compromised by his opinion expressed in the prior
case to the effect that Employee’s 2004 injures were attributable to
the 1987 accident.
20121069-CA 9 2013 UT App 301
Employee’s claim with reference to the “natural result” standard
and the guidance offered in this opinion.4