Yesco v. Labor Comm'n

497 P.3d 839

YESCO, Petitioner,

v.LABOR COMMISSION and David Keller, Respondents.

No. 20200139-CA

Court of Appeals of Utah.

Filed September 10, 2021

Bret A. Gardner and Dori K. Petersen, Attorneys, Salt Lake City, UT, for Petitioner

Aaron J. Prisbrey, Attorney, St. George, UT, for Respondent David Keller

Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.

Opinion

HAGEN, Judge:

¶1 For over sixteen years, David Keller worked on a daily basis installing heavy signs using a hammer drill and jackhammer. After undergoing wrist-fusion surgery on both arms, Keller filed for permanent total disability compensation from his employer, YESCO, claiming he had sustained wrist and shoulder injuries from the repetitive work activities. The Utah Labor Commission awarded Keller benefits. YESCO now seeks judicial review and argues the Commission erred in determining Keller's work activities medically caused his condition. We conclude that the Commission applied the correct legal standard and that substantial evidence supports its medical causation finding as to his wrist condition, but not his shoulder condition. Accordingly, we set aside the Commission's decision and remand for further proceedings.

BACKGROUND¹

¶2 In 1995, Keller began his career with YESCO working as a sign installer. For the next sixteen years, Keller's daily work activities included "wire stripping, turning wrenches, hand digging holes with a shovel, running a hammer drill on concrete buildings, [and using] jackhammers." The physical and repetitive nature of these activities "would frequently bind up and forcefully twist [Keller's] hands and wrists." And once in 2007, while lifting a sign, Keller "felt a pop" in his left arm accompanied by pain and a "visible bump." A medical exam revealed Keller had suffered "a torn [left] biceps muscle." After a month of work restrictions coupled with mild pain relievers, Keller returned to full duty.

¶3 Beginning in 2009, Keller began complaining to his general practitioner of wrist pain. Only the left wrist was causing pain at first, but within five months Keller complained of worsening pain in both wrists. Keller was eventually referred to an orthopedic surgeon for the wrist pain. The orthopedic surgeon noted Keller's pain had "gradually increased over the years" and was "not the result of an injury." After X-rays, the orthopedic surgeon diagnosed Keller with grade four arthritis in both wrists and opined that Keller's "type of work is definitely a large contributor if not sole cause of his condition." Upon consultation, Keller decided to move forward with surgery on the right wrist "due to the severity of pain and limitation" caused by the arthritis, retaining the option "to proceed with fusion of the left wrist" when ready.

¶4 The orthopedic surgeon performed a "right wrist partial fusion" in May 2011. Keller found that the surgery improved "his strength and pain in the wrist," but he continued to have "trouble jam[m]ing a shovel into the ground, using that hand to pushup off the ground, [and] pushing hard on a wrench." Consequently, when Keller returned to YESCO for full-duty work that October, he took a desk job working as the assistant to the manager. Eight months into that role, in June 2012, Keller suffered a minor work injury when he tripped on an "outrigger pad[,] fell into [a] crane," hit his head, and cut his fingers. YESCO requested Keller undergo an evaluation, but Keller only complained of a minor headache and "pain in his neck and lower back," so he was released for work duty after ten days.

¶5 Keller, however, continued to experience "severe limiting" wrist pain. YESCO accommodated Keller's limitations by making him a "safety manager," which involved mostly supervisory work. But because the pain was "causing impairment on a daily basis," Keller returned to the orthopedic surgeon in July 2013 to proceed with left wrist fusion surgery. At first, Keller responded well to the surgery and the only complaints he voiced to the orthopedic surgeon were related to his left shoulder, not his wrist. Keller reported struggling for months with "sharp, occasionally radiating" left shoulder pain that made most movement and activities difficult. An MRI indicated tears in the shoulder and surrounding tendon. Then, Keller began reporting complications with his left wrist as well, such that he could "no longer open twist-off lids or open jars due to pain" and had to "use his fist to get up out of a chair as he [could not] use the palm of his hand due to pain in the wrist." At that point, the orthopedic surgeon advised proceeding with an additional surgery on the left wrist as well as surgery on the left shoulder. Keller underwent shoulder and wrist surgery in August 2014 and in December he was authorized for full-duty work with "permanent restrictions" and referred for an impairment rating.

¶6 Keller obtained two medical evaluations: the first by YESCO's medical consultant and the second by Keller's general practitioner. YESCO's medical consultant reviewed Keller's medical history and provided a thorough examination to specifically evaluate Keller for impairments from his work accidents. The consultant determined that Keller suffered a 23% permanent partial impairment due to his wrist and shoulder injuries, but concluded the impairment was "nonindustrial" because none of Keller's surgeries or work restrictions were "work related conditions," i.e., related to Keller's work accidents; rather, the injuries were "age related." This conclusion was based on the fact that (1) "the symptoms and findings [were] the same in both wrists suggest[ing] a systemic rather than external cause for th[e] arthritis," and (2) the left wrist and shoulder pain began gradually and reached its peak more than two years after Keller left his position as a sign installer. Because YESCO's medical consultant found none of Keller's pain was "attributable to his work activities," the consultant considered him to be "at maximum medical improvement for any work-related condition." Conversely, Keller's general practitioner found a causal relationship between Keller's work and his wrist problems, explaining, "overuse at work has resulted in severe wrist arthritis." Based on twelve years observing Keller as his doctor, the general practitioner opined that Keller's "wrist cannot be used at all" because Keller's pain is severe enough that it would "constantly" interfere with his "attention and concentration needed to perform even simple work tasks."

¶7 Meanwhile, in 2014, YESCO closed its operations in the region and Keller was laid off. After termination, Keller filed for—and was awarded—permanent partial disability benefits due to his 23% impairment rating from the "repetitive motion" wrist injuries that occurred while he was "[p]erforming his normal duties as a journeyman." The next year, Keller filed for permanent total disability compensation claiming he suffered "repetitive trauma" from his work with YESCO that resulted in injuries to "both wrists and left shoulder." This time, YESCO disputed that Keller's injuries were medically related to his work activities. Because the evidence was unclear on whether there existed a definite causal connection between Keller's work duties and his wrist and shoulder injuries, the administrative law judge (the ALJ) referred the case to a medical panel for evaluation.

¶8 The panel reviewed 178 pages of Keller's medical records, x-rays, and MRIs, and conducted a medical examination prior to creating its report. In its report, the panel determined that neither of Keller's work accidents (the 2007 bicep tear and the 2012 worksite fall) "caused or contributed" to the shoulder or wrist injuries. On the other hand, the panel opined that the "[r]epetitive forceful manual labor with trauma such as the drill binding, over many years, could have contributed to a degree to [Keller's] ... arthritis and his left shoulder degeneration, along with all other life exposures." And the "repetitive forceful strains ... could have contributed to [Keller's wrist arthritis ] over the years, although it would not be the sole cause." But the panel opined that it was "more likely" that Keller's shoulder and wrist injuries were due to "chronic, age related" conditions or "a congenital predisposition." Relying on this report, the ALJ denied Keller benefits after finding that "Keller's conditions were degenerative and/or congenital and not caused by a work-related activity."

¶9 Keller subsequently filed a motion for review with the Commission. On review, the Commission "read[ ] the medical panel's report differently than the [ALJ] did." The Commission explained that "the appropriate inquiry" in determining medical causation "is whether the work accident contributed ‘in any degree’ to the injured worker's current condition for which compensation is sought." (Quoting Hutchings v. Labor Comm'n , 2016 UT App 160, ¶ 26, 378 P.3d 1273.) From the Commission's perspective, the panel's report "medically causally connect[ed] [Keller's] work activities to his overall wrist and left-shoulder conditions." Accordingly, the Commission remanded the case to the ALJ for further consideration of whether Keller qualified for permanent total disability benefits. The ALJ awarded Keller benefits on remand, largely echoing the Commission's conclusions regarding medical causation.

¶10 YESCO requested the Commission review the ALJ's benefits award to Keller, arguing the ALJ erred in determining medical causation existed. The Commission affirmed the award, reiterating that Keller's work activities medically caused his injuries. First, the Commission determined the panel's report, "as a whole," was unequivocal and unambiguous in establishing medical causation. While the panel stated that Keller's two workplace accidents "did not contribute" to Keller's current injuries, it acknowledged that his repetitive work activities ...