Petersen v. Labor Commission

2016 UT App 222
THE UTAH COURT OF APPEALS
TONYA PETERSEN ,
Petitioner,
v.
LABOR C OMMISSION , U TAH S TATE U NIVERSITY ,
AND WORKERS C OMPENSATION F UND,
Respondents.
Memorandum Decision
No. 20150423-CA
Filed November 3, 2016
Original Proceeding in this Court
Ronald Ball, Virginius Dabney, and Stony Olsen,
Attorneys for Petitioner
Ryan Andrus and Hans M. Scheffler, Attorneys for
Respondents Utah State University and Workers
Compensation Fund
JUDGE K ATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES S TEPHEN L. R OTH and JILL M. POHLMAN concurred.
TOOMEY, Judge:
In this memorandum decision, we decide whether the	¶1
Utah Labor Commission erred in denying Tonya Petersen’s
claim for the cost of cervical spine surgeries. We decline to
disturb the Commission’s determination.
BACKGROUND
In 2010 and 2011, Petersen was an employee of Utah State	¶2
University. 	On 	December 	6, 	2011, 	Petersen 	and 	a 	student
“moved eight oak tables each weighing 94 pounds a distance of
approximately 20 feet” and then stacked four of them on top of

Petersen v. Labor Commission
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the other four. The following morning, Petersen started to feel
pain “below her right scapula” and in her right arm. As the day
progressed, her right arm began to feel numb, and the next day
she had “complete numbness in her right arm.”
Two days later, a cervical spine X-ray revealed “moderate	¶3
to 	severe 	degenerative 	changes 	with 	decreased 	disc 	height
[and] 	spurring.” 	The 	treating 	doctor 	concluded 	that
Petersen’s symptoms were “suggestive of . . . radiculopathy . . .
superimposed 	upon 	moderate 	to 	severe 	degenerative 	joint
changes” in her lower neck vertebrae.1 Over the next month,
Petersen sought treatment for upper back and right arm pain
and numbness, tingling, and weakness in her right hand. In
January 2012, Petersen was diagnosed with “[n]eck and upper
back strain” and the treating physician indicated that “most of
her pain . . . is chronic arthritic pain.” In February 2012, Petersen
underwent an MRI that “revealed cervical spine disc bulges with
impingement of the nerve roots and cervical cord as well as
moderate to severe osteoarthritis” in her lower cervical and top
thoracic vertebrae. Following the MRI, the treating physician
concluded Petersen “need[ed] a spinal surgery evaluation.”
Although we are unable to determine when, the record	¶4
shows that Petersen filed a claim with Workers Compensation
Fund (WCF). WCF requested that Petersen undergo a medical
examination, which was conducted in May 2012. The medical
examiner reviewed Petersen’s health records, met with her, and
concluded that surgery was appropriate because of “pre-existing
1. Radiculopathy “occurs when a nerve . . . is compressed or
irritated where it branches away from the spinal cord” and is
“commonly 	called 	a 	‘pinched 	nerve.’” 	Cervical 	Radiculopathy
(Pinched Nerve), American Academy of Orthopaedic Surgeons
http://orthoinfo.aaos.org/PDFs/A00332.pdf [https://perma.cc/3W
ZS-6DCX].

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20150423-CA 	3 	2016 UT App 222
conditions” but that “none of [her] injuries were attributable to
the industrial accidents.”2 Accordingly, WCF “denied [Petersen’s]
claim for work-related injur[ies] to her neck.”
In July 2012, Petersen met with an orthopedic surgeon	¶5
and “reported moderate ongoing neck and upper back pain.”
The surgeon’s report indicates that Petersen knew WCF had
denied her claim for a “work-related injury to her neck.”
Petersen requested a hearing with the Commission to	¶6
review her WCF claim. Before the hearing, on August 29, 2012,
she had surgery on her cervical spine. Two days later, WCF filed
an answer to Petersen’s request for a hearing, denying liability
for any benefits related to her cervical spine conditions.
After 	surgery, 	Petersen 	“reported 	continued 	and	¶7
increased numbness and pain through the right arm which
exceeded pre-op levels” and she had a second neck surgery in
December 2012. In February 2013 the surgeon completed a
“Treating Physician Medical Opinion Re Industrial Injury” form
in which he opined that the December 2011 “industrial accident
caused cervical spine injuries affecting the neck and upper
extremities,” that her treatment was “medically necessary,” and
that “future industrial medical care should include follow-up for
two years and therapy to assist with improving function.” The
2. In her briefing, Petersen implies that WCF initially approved
the cervical spine surgeries in asserting that “all doctors who
saw 	her 	prior 	to 	surgery 	concluded 	that 	the 	surgery 	was
necessary 	to 	treat 	her 	conditions” 	and 	argues 	that 	the
Commission should not “be allowed to retroactively decide what
medical care is necessary after it has been performed.” Petersen’s
argument 	is 	misleading 	because 	she 	suggests 	that 	WCF
approved the surgeries and then later denied compensation. But
the record does not support this claim.

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surgeon later modified this opinion to indicate that the accident
“was an aggravation” of a 2010 work-related injury.3
Petersen 	continued 	to 	experience 	neck 	pain 	and	¶8
numbness in her right arm as well as increasing lower back pain.
In August 2013, at WCF’s request, another doctor performed a
medical examination and concluded that Petersen “sustained an
acute muscular strain with temporary aggravation of severe
preexisting degenerative disc and facet disease as a result of the
industrial injury,” that “the majority if not all the symptoms she
experienced 	after 	the 	industrial 	injury 	were . . . due 	to 	her
sever[e] pre-existing arthritic condition,” and that “there are no
permanent 	physical 	impairments 	as 	a 	result 	of . 	. . [the]
December 6, 2011 industrial accident[].”
An evidentiary hearing was held before an administrative	¶9
law judge (ALJ) on March 5, 2014. Because the medical opinion
of 	Petersen’s 	surgeon 	conflicted 	with 	those 	of 	the 	medical
examiners retained by WCF as to the medical cause of Petersen’s
condition, the ALJ ordered a medical panel evaluation.
A panel of three doctors—two orthopedic surgeons and a	¶10
neurologist—examined Petersen in August 2014. The panel also
reviewed the ALJ’s Memorandum, Findings of Fact, and Interim
Order, as well as 468 pages of medical records from various
providers, including the two medical examiners retained by
WCF. The panel unanimously concluded that Petersen “at most”
suffered a cervical spine “strain/sprain resulting in temporary
3. 	In 	mid-June 	2010, 	Petersen 	and 	a 	student 	moved 	some
furniture at the university and the next day Petersen “awoke
with low back pain.” Two weeks later Petersen was diagnosed
with 	a 	“left 	low 	back 	(lumbar-sacral) 	strain.” 	Because 	the
compensation at issue in this case arises from the December 2011
injury, we do not discuss the 2010 injury further.

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aggravation 	of 	[her] 	pre-existing 	degenerative 	cervical 	spine
disease.” It further concluded that her primary injury from the
December 2011 accident was a “right lower brachial plexus
stretch/compression injury,” not an injury to Petersen’s cervical
spine.4 Symptoms of numbness and weakness in Petersen’s right
hand and forearm were the result of the brachial plexus injury.
The panel indicated that the cervical spine strain or sprain that
resulted from the December 2011 accident “reached medical
stability on 1-31-12,” that the “cervical spine surgeries dated
August 28–29, 2012 and December 20–23, 2012 respectively were
not 	medically 	necessary 	because 	the 	patient’s 	work 	related
injuries on 12-6-11 did not require cervical spine surgery,” that
“[a]ll other medical treatment due to [Petersen’s] December 6,
2011 work injuries was necessary,” and that no future medical
care was necessary for those injuries.
After receiving the medical panel’s evaluation, the ALJ	¶11
issued findings and an order. The order noted the medical and
procedural history of the case, including the medical panel’s
report, and concluded,
A preponderance of the evidence demonstrates
that 	[Petersen’s] 	December 	2011 	industrial
accident 	resulted 	in 	a 	right 	brachial 	plexus
stretch/compression injury, which reached medical
stability on April 27, 2012, and a cervical spine
musculo-l[i]gamentous 	strain/sprain, 	which
reached 	medical 	stability 	on 	January 	31, 	2012.
A 	preponderance 	of 	the 	evidence 	further
demonstrates that all non-surgical care used to treat
4. According to the panel, the “brachial plexus is a network of
nerves formed chiefly by cervical nerves” in the lower cervical
and top thoracic nerves. It “lies deep to the . . . collarbone . . . and
supplies nerves to the shoulder, arm and hand.”

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[Petersen’s] December 6, 2011 industrial injuries
was medically necessary.
(Emphasis added.)
With respect to whether surgery was medically necessary	¶12
to 	treat 	Petersen’s 	industrial 	injuries, 	the 	ALJ 	noted 	that
Petersen’s treating physicians and the medical panel agreed that
the December 2011 accident “resulted in an industrial injury
which caused upper right extremity numbness, weakness, and
atrophy.” Further, the treating physicians “based their treatment
on reasonable medical judgment and information available,” and
this led to Petersen’s two cervical spine surgeries. Because the
treating 	physicians 	and 	the 	surgeon 	deemed 	surgery
appropriate, the ALJ reasoned, the surgeries were necessary.
To 	reach 	this 	determination, 	the 	ALJ 	relied 	on 	the	¶13
Commission’s decision in Pond v. La-Z-Boy, No. 99-0700 (May 1,
2003), a case in which the respondent argued that surgery was
unnecessary to treat the petitioner’s injuries from an industrial
accident. Id. at 1. There the Commission stated,
[T]he need for prospective surgery must, out of
necessity, 	be 	made 	on 	the 	basis of 	reasonable
medical 	judgment 	and 	the 	information 	then
available. . . . 	Consequently, 	not 	all 	medical
treatment is successful and not all surgery will
find the condition that prompted the surgery in
the 	first 	place. 	But 	if 	well-founded 	medical
opinion 	concludes 	that 	a 	particular 	medical
treatment 	is 	required, 	that 	treatment 	will 	be
considered “necessary” regardless of outcome.
Id. at 4. The ALJ concluded that, although the medical panel
determined the cervical spine surgeries were unnecessary to
treat Petersen’s December 2011 industrial accident injuries, the

Petersen v. Labor Commission
20150423-CA 	7 	2016 UT App 222
surgeries 	“were 	nonetheless 	medically 	necessary 	to 	treat
[Petersen’s] December 6, 2011 industrial injuries” because the
surgeon based his care on the medical information available at
the time of the surgeries. Accordingly, the ALJ ordered Utah
State University and WCF to pay “all medical treatment for the
December 	2011 	cervical 	sprain/strain” 	injury, 	including 	the
expenses incurred by the August 29, 2012 and December 20, 2012
surgeries.
Utah State University and WCF moved for review by the	¶14
Commission, arguing the ALJ erred in “awarding the cost of
surgical treatment” for Petersen’s cervical spine condition.5 The
Commission 	agreed 	that 	the 	ALJ’s 	reliance 	on 	Pond 	was
erroneous because in Pond the preponderance of the evidence,
including the medical panel’s determination, “supported that the
surgery was necessary.” In contrast, “the medical evidence in the
present 	matter 	[did] 	not 	show 	that 	the 	surgeries 	on 	Ms.
Petersen’s 	cervical 	spine 	were 	necessary” 	to 	treat 	injuries
resulting from the December 2011 work accident. Because the
“[medical] panel’s opinion [was] supported by the evidence in
the record,” including the pre-surgery determinations of WCF’s
medical examiners, and its “opinion on this point [was] based on
a 	thorough, 	well-reasoned, 	impartial 	review 	of 	all 	of 	Ms.
Petersen’s relevant medical history,” the Commission concluded
that “the surgeries in question were not necessary to treat her
work injuries” and Petersen was not “entitled to the cost of such
surgeries.” 	Accordingly, 	the 	Commission 	“modifie[d] 	the
portion 	of 	[the 	ALJ’s] 	decision 	pertaining 	to 	the 	award 	of
medical expenses by denying Ms. Petersen’s claim for the cost of
the cervical spine surgeries performed in 2012.” Petersen now
petitions for judicial review.
5. Petersen’s non-surgical treatment is not at issue and we do not
address it.

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ISSUE AND STANDARD OF REVIEW
Petersen contends the Commission erred by determining	¶15
the cervical spine surgeries were not necessary to treat her
injuries from the December 2011 accident and therefore not
compensable 	under 	the 	Workers 	Compensation 	Act. 	An
agency’s application of “a legal standard to a set of facts unique
to a particular case” presents “[a] mixed question of law and
fact.” Murray v. Labor Comm’n, 2013 UT 38, ¶¶ 33–34, 308 P.3d
461 (citation and internal quotation marks omitted). Where “the
facts are not at issue” and “the ultimate question is the legal
effect of the facts,” the agency’s decision is “law-like” and
“warrants nondeferential review.” Id. ¶ 40.
ANALYSIS
Petersen contends the Commission erred in determining	¶16
that her cervical spine surgeries were unnecessary to treat her
December 	2011 	industrial 	accident 	injuries. 	Specifically, 	she
argues that, because she suffered a neck injury from the accident
and later needed two neck surgeries, the injury medically caused
the need for the surgeries, and the surgeries were therefore
compensable. At oral argument on appeal, Petersen conceded
the 	surgeries 	were 	not 	necessary 	to 	treat 	the 	temporary
aggravation the accident caused, that the temporary aggravation
was resolved prior to the surgeries, and that the surgeries were
instead 	necessary 	to 	treat 	her 	preexisting 	condition.
Nevertheless, Petersen maintains it does not matter whether the
accident caused only a temporary injury, rather she argues
“causation does not end because it’s temporary . . . ; it goes on
forever. 	It’s 	lifetime 	medical 	provisions” 	and 	the 	treatment
“attaches to [the] claim forever; [it is] lifetime medical care
forever.” But Petersen offers no support for this interpretation of
the Workers’ Compensation Act and indeed, it runs contrary to
Utah law.

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Section 34A-2-401 of the Utah Code provides that an	¶17
employee who is injured “by [an] accident arising out of and in
the course of the employee’s employment” shall be recompensed
for 	medical 	costs. 	Utah 	Code 	Ann. 	§ 	34A-2-401(1)(b)(i)
(LexisNexis 2015). In Allen v. Industrial Commission, 729 P.2d 15
(Utah 	1986), 	our 	supreme 	court 	clarified 	what 	injuries 	are
compensable under this statute. There the court adopted a two-
part test to determine whether an injury is compensable: the
accident must be the legal cause and the medical cause of the
injury. Id. at 25–26. Under the legal-cause prong, a claimant must
show 	that 	the 	injury 	“arose 	out 	of 	or 	in 	the 	course 	of
employment” or, if a claimant has a preexisting condition, the
claimant 	“must 	show 	that 	the 	employment 	contributed
something substantial to increase the risk he already faced in
everyday life because of his condition.”6 Id. at 25. The medical-
cause prong requires a claimant to “prove the disability is
medically the result of an exertion or injury that occurred during
a work-related activity.” Id. at 27. “The purpose of the medical
cause test is to ensure that there is a medically demonstrable
causal 	link 	between 	the 	work-related 	exertions 	and 	the
unexpected injuries that resulted from those strains.” Id.
Allen makes clear that there must be a nexus between the	¶18
accident and the injury for which treatment is sought. Only
medical 	expenses 	for 	injuries 	resulting 	from 	an 	industrial
accident 	are 	compensable. 	Requiring 	a 	nexus 	between 	the
accident and injury “prevent[s] an employer from becoming a
general insurer of his employees and discourage[s] fraudulent
claims.” Id.
In 	this 	case, 	five 	doctors 	concluded 	that 	Petersen’s	¶19
surgeries were unnecessary to treat an injury related to the
6. As the ALJ’s order noted, legal causation is not contested in
this case.

Petersen v. Labor Commission
20150423-CA 	10 	2016 UT App 222
December 2011 accident but were necessary to treat preexisting
conditions. The medical examination in May 2012, three months
before the initial surgery, determined that “none of [Petersen’s]
injuries were attributable to the industrial accidents” and that
surgery would be appropriate to treat only her preexisting
conditions. In August 2013, another WCF medical examination
determined that the December 2011 accident caused a “temporary
aggravation of [a] severe pre-existing degenerative . . . disease”
and that there were no “permanent physical impairments” from
the December 2011 accident. Finally, a three-doctor medical
panel appointed by the ALJ determined that the accident caused
“at most” a cervical spine “strain/sprain resulting in temporary
aggravation of [Petersen’s] pre-existing degenerative cervical
spine disease.” (Emphasis omitted.) The panel further concluded
that this “strain/sprain” was stable by the end of January 2012
and that the primary injury from the December 2011 accident
was a “right lower brachial plexus stretch/compression,” not an
injury to Petersen’s cervical spine. Indeed, Petersen conceded at
oral argument on appeal that the surgeries were not performed
to treat an injury caused by the accident.
Because the December 2011 accident did not medically	¶20
cause the condition that required the cervical spine surgeries, the
surgeries were not necessary to treat an injury “arising out of
and in the course of the employee’s employment” and are thus
not compensable under sections 34A-2-401 and 34A-2-418. See
Utah Code Ann. §§ 34A-2-401(1), -418(1) (LexisNexis 2015); Allen
v. Industrial Comm’n, 729 P.2d 15, 24–25, 27 (Utah 1986). We
therefore conclude the Commission did not err in determining
that Petersen is not “entitled to the cost of such surgeries.”
CONCLUSION
We 	conclude 	that 	the 	Commission 	did 	not 	err 	in	¶21
determining that Petersen’s surgeries were unnecessary to treat

Petersen v. Labor Commission
20150423-CA 	11 	2016 UT App 222
an injury caused by the December 2011 industrial accident and
therefore not compensable under the Workers’ Compensation
Act. 	Accordingly, 	we 	decline 	to 	disturb 	the 	Commission’s
decision.