Cox v. Labor Commission

2017 UT App 175

THE UTAH COURT OF APPEALS

LAVON G. COX,
Petitioner,
v.
LABOR COMMISSION, ST. GEORGE TRUSS CO.,
AND WORKERS COMPENSATION FUND,
Respondents.

Amended Opinion 1
No. 20150788-CA
Filed September 14, 2017

Original Proceeding in this Court

Virginius Dabney and Stony V. Olsen, Attorneys
for Petitioner
Floyd W. Holm, Attorney for Respondents St.
George Truss Co. and Workers Compensation Fund

JUDGE JILL M. POHLMAN authored this Amended Opinion, in
which JUDGES GREGORY K. ORME and KATE A. TOOMEY
concurred. 2

1. This Amended Opinion replaces the Opinion in Case No.
20150788-CA issued on July 20, 2017. After our original opinion
issued, Petitioner Lavon G. Cox filed a petition for rehearing,
and we called for a response. We grant the petition in one
limited respect, namely to define the term “baseline” as used in
paragraph 20, but otherwise deny the petition.

2. Judge J. Frederic Voros Jr. was a member of the panel that
initially decided this case, and he authored the original opinion.
He did not have the opportunity to vote on this Amended
Opinion prior to his retirement. Judge Gregory K. Orme joined
the panel following the retirement of Judge Voros and upon
receipt of the response to the petition for rehearing.
 Cox v. Labor Commission

POHLMAN, Judge:

¶1 Petitioner Lavon G. Cox seeks judicial review of the
denial of his workers’ compensation claim. We conclude that the
Labor Commission did not apply the correct medical causation
standard. We therefore set aside the Commission’s order and
direct it to reconsider Cox’s claim under the correct legal
standard.

BACKGROUND

¶2 In 2013 Cox worked as a maintenance mechanic for
Respondent St. George Truss Company. On May 7, 2013, while
removing an 80-pound brake drum from a semi truck, Cox “felt
a burning, popping sensation” in his back. He “dropped the
drum and sunk to his knees for a couple minutes.” He “tried
walking it off” and went to the shop to take four 200mg tablets
of ibuprofen. He asked a coworker for help with the brake drum
and completed his shift doing “light maintenance” work.

¶3 The next day Cox “felt another burning, popping
sensation” in his back while removing another brake drum. He
again walked around, went to the shop, and took ibuprofen. He
struggled to complete his work because his back hurt, with his
pain at 4 on a scale of 1 to 10. He again completed his shift doing
lighter work. Cox worked the remaining two days of the work
week with “quite a bit of pain,” rested in bed over the weekend,
and worked the following week.

¶4 On May 17, 2013, Cox first reported his pain to WorkMed,
an occupational health services clinic, after he fell to the ground
at work while picking up a hose. Four days later Cox again
reported to WorkMed when he blacked out while bending down
to tie his shoe. The WorkMed doctor diagnosed Cox with a
lumbar spine strain, prescribed pain medications, and referred
him to physical therapy. The doctor gave Cox a light-duty work

20150788-CA 2 2017 UT App 175
 Cox v. Labor Commission

release with the following restrictions: “No bending or twisting,
[n]o lifting/working above shoulder level, [and] [n]o lifting more
than 15 pounds.” Cox’s modified duty entailed operating a
forklift, which includes manually adjusting 60-to-70-pound forks
and sitting on a solid-axle forklift seat with no suspension. Cox
worked ten-hour days with his pain reaching 8 on a scale of 1 to
10.

¶5 After several follow-up visits throughout May and June,
the WorkMed doctor referred Cox to a physiatrist. In early July
the physiatrist ordered further work restrictions, limiting Cox to
four hours of work per day. Cox began working half-days with
pain varying from 4 to 8 on a scale of 1 to 10. During this time,
Cox “started losing bowel and bladder control . . . almost every
day . . . for a while.” He also started blacking out and getting
lightheaded.

¶6 During a two-week period beginning in late July, Cox
went to the emergency room three times because he was
concerned about his back. After his first visit, his physiatrist
directed him to get an MRI. The MRI revealed “severe spinal
canal and neural foraminal narrowing” as well as disc bulging
on four lumbar levels. He went to the emergency room again the
following week because he experienced lower-back pain at home
after bending over.

¶7 The following month Cox fell while getting out of his
truck at work. At the time he fell, his back pain level was 8 on a
scale of 1 to 10. Cox drove himself to the emergency room, where
a second MRI was taken. The MRI revealed “severe spinal canal
stenosis,” and the doctor recommended that Cox obtain a
neurosurgical consultation. The surgeon admitted Cox to the
hospital that same day and scheduled lower back surgery for
three days later. After surgery Cox spent three days in the
hospital and a week in a rehabilitation facility. He wore a back
brace for 8 to 10 weeks, continued treatment with the surgeon,
and participated in physical therapy thereafter. Cox has not

20150788-CA 3 2017 UT App 175
 Cox v. Labor Commission

worked since his fall, and he testified that he continued to have
back pain varying from 4 to 8 on a scale of 1 to 10.

¶8 Cox experienced two prior incidents involving his back.
In 1977 he injured his back in a car accident. He spent about five
days in traction before returning to work with no pain. In 2009
he injured his back and ankle in an accident involving an all-
terrain vehicle. The ankle injury required surgery. Cox’s treating
doctor made notes listing chronic lower back pain as a symptom
in at least two subsequent visits. After the ankle surgery, Cox’s
back pain appeared to have mostly resolved.

¶9 Cox filed a claim with the Workers Compensation Fund.
WCF denied the claim, citing the following reasons: (1) Pre-
existing condition: “severe degenerative disc disease and severe
stenosis,” and (2) Other: “no acute findings to suggest surgery
was for this claim.” Cox requested a hearing before the
Commission to challenge the denial of his claim. In the
meantime the WCF medical examiner issued a report concluding
that “[t]he claimant’s industrial accident of 5/7/13 . . . [was] not
the cause, aggravator or contributor to the claimant’s underlying
and pre-existing low back condition.” But Cox’s surgeon and his
physician’s assistant both asserted a causal relationship between
the industrial accident and Cox’s back problems. And Cox’s
surgeon later opined that “[w]hile the role that these preexisting
conditions played in [Cox’s] symptoms after his injury is
debatable, the fact is [his] symptoms worsened after his injury to
the point that he required further treatment and surgery.” He
further opined that “[w]ithout a worsening of symptoms, he
may not have required surgery at this time despite the
preexisting degenerative changes.”

¶10 An Administrative Law Judge held an evidentiary
hearing in May 2014. Because the medical opinion of Cox’s
surgeon conflicted with that of the WCF medical examiner on
the medical cause of Cox’s condition, the ALJ ordered a medical
panel evaluation. A panel of two doctors concluded that “the

20150788-CA 4 2017 UT App 175
 Cox v. Labor Commission

injury of May 2013 did not cause Mr. Cox’s substantial lumbar
spinal problems,” because “[s]pinal stenosis . . . takes years to
develop.” The ALJ issued findings and an order denying benefits
and concluding that “[t]he mechanism of injury including the
two identified accidents and [Cox’s] overall work exertions in his
job would not cause the extensive damage seen at multiple
levels.” The ALJ thus agreed with the medical panel and the
WCF medical examiner that Cox’s problems “found during his
August 2013 emergency room visit and the need for surgery and
his condition post-surgery were caused by chronic and long
standing degenerative disc disease.”

¶11 Cox petitioned for review by the Commission. In August
2015, it affirmed the ALJ’s decision denying Cox’s claim for
benefits. The Commission agreed that “the medical evidence
shows that the relatively minor low-back strain from the work
accidents is not the medical cause of any disability or [Cox’s]
need for surgery.” Cox now petitions for judicial review.

ISSUE AND STANDARD OF REVIEW

¶12 Cox contends that the Commission did not apply the
correct legal standard for medical causation where, as here, an
injury aggravates a pre-existing condition. “[W]hether the
Commission has applied the correct legal standard in reaching
its medical causation finding is a legal question, which we
review for correctness.” Hutchings v. Labor Comm’n, 2016 UT App
160, ¶ 24, 378 P.3d 1273.

ANALYSIS

¶13 Cox contends that the Commission applied the incorrect
legal standard for medical causation by “refusing to follow
appellate court decisions holding that aggravation of a
preexisting condition is sufficient to establish medical causation
in an industrial case.”

20150788-CA 5 2017 UT App 175
 Cox v. Labor Commission

¶14 The Workers’ Compensation Act requires the employer to
cover the medical expenses of an employee “who is
injured . . . by accident arising out of and in the course of the
employee’s employment.” Utah Code Ann. § 34A-2-401
(LexisNexis 2015). The phrase “‘arising out of or in the course of
employment’ requires that there be a causal connection between
the injury and the employment.” Allen v. Indus. Comm’n, 729 P.2d
15, 18 (Utah 1986). The claimant bears the burden of proving
causation by a preponderance of the evidence. See Virgin v. Board
of Review of Indus. Comm’n, 803 P.2d 1284, 1288 (Utah Ct. App.
1990). To prove causation, the claimant must show that the
industrial accident was both the legal cause and the medical
cause of the injury. See Allen, 729 P.2d at 25.

¶15 Simply put, the “medical cause” test requires a showing
that the injury was work-related. See 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.”).
Thus, the “key question in determining causation” is whether
the employee’s on-the-job exertion “in fact contributed to the
injury.” Id. at 24.

¶16 Cox argues that “medical causation” presents a “low bar”
comparable to “but-for cause.” (Internal quotation marks
omitted.) Cox summarizes the essential inquiry for medical
causation as follows: “In short, was the industrial accident ‘a’
cause, even a minor one?” According to Cox, the medical
causation standard requires the Commission to determine
whether “the three industrial accidents and the two months of
light duty work on the fork lift—‘cumulative trauma’[ 3]—have

3. Cox repeatedly asserts that he “suffered [a] ‘cumulative
trauma’ over the three months preceding his spinal surgery,”
rather than a single industrial accident on May 7, 2013. Cox
objected to the medical panel report on the ground that it was
(continued…)

20150788-CA 6 2017 UT App 175
 Cox v. Labor Commission

any connection, even a de minimis one, to [Cox’s] subsequent
medical care and surgery[.]”

¶17 WCF agrees that a showing that Cox’s work-related
activity “medically caused some injury to Cox” would satisfy the
medical causation standard, but argues that the medical cause
inquiry begins, rather than ends, with that determination. WCF
maintains that the medical causation standard requires in
addition “a showing of permanent aggravation of a preexisting
condition” and that a showing of “an exacerbation of a
preexisting condition that is only temporary and has already
reached baseline” is insufficient. (Emphasis added.)

¶18 We agree with Cox’s contention that proving that the
industrial accident is a cause—as opposed to the cause—of the
condition requiring treatment satisfies the medical causation
standard. Thus, the “aggravation or lighting up of a pre-existing
disease by an industrial accident is compensable,” Allen, 729
P.2d at 25 (citation and internal quotation marks omitted), so
long as the employee’s condition is “not solely the result of a
pre-existing condition,” see Hutchings v. Labor Comm’n, 2016 UT
App 160, ¶ 18, 378 P.3d 1273 (quoting Virgin v. Board of Review of
Indus. Comm’n, 803 P.2d 1284, 1288 (Utah Ct. App. 1990)). In

(…continued)
based on “insufficient Interim Findings [of Fact]” that failed to
consider his “cumulative trauma.” The ALJ rejected this
argument because, although the ALJ primarily focused on the
May 7, 2013 industrial accident in its Interim Findings, “the
[ALJ] and the medical panel were aware that the matter was
submitted based on the two acute injuries and the on-going
work exertions associated with his job.” Further, while the
Commission did not explicitly refer to “cumulative trauma,” it
consistently referred to Cox’s “work injuries,” “work accidents,”
and “work activities” in its decision, suggesting that it was also
aware of this evidence.

20150788-CA 7 2017 UT App 175
 Cox v. Labor Commission

other words, compensation is required “if the industrial injury
results in a permanent impairment that is aggravated by or
aggravates a pre-existing permanent impairment to any degree.”
Zimmerman v. Indus. Comm’n, 785 P.2d 1127, 1131 (Utah Ct. App.
1989) (quoting Second Injury Fund v. Streator Chevrolet, 709 P.2d
1176, 1181 (Utah 1985)); see also Hutchings, 2016 UT App 160, ¶ 26
(concluding that the question of “whether the accident
contributed to [the claimant’s] current low back condition in any
degree” correctly stated the medical causation standard).

¶19 We also agree with WCF’s position that the medical
causation standard requires a showing that the industrial
accident caused a permanent aggravation of a pre-existing
condition. Beginning with Zimmerman and Virgin, we have
distinguished a permanent aggravation of a pre-existing
condition, which meets the medical causation standard, from a
temporary one, which does not. See Zimmerman, 785 P.2d at
1130–31; see also Virgin, 803 P.2d at 1288–89. In both cases, we
held that the claimant failed to prove medical causation where
the industrial accident that aggravated the pre-existing condition
did not result in permanent impairment, but rather a temporary
one. See Zimmerman, 785 P.2d at 1130–31; Virgin, 803 P.2d at
1288–90. “In other words, if a preexisting condition is only
temporarily aggravated by an industrial accident, a claimant
may only recover for the temporary aggravation, and not for
unrelated symptoms or complications he may experience down
the road.” Valdez v. Labor Comm’n, 2017 UT App 64, ¶ 14, 397
P.3d 753. 4

4. We disagree with Cox’s contention that this court’s decisions
in Zimmerman and Virgin are inconsistent with our supreme
court’s decisions in Provo City and Washington County. Compare
Zimmerman v. Indus. Comm’n, 785 P.2d 1127, 1130–31 (Utah Ct.
App. 1989), and Virgin v. Board of Review of Indus. Comm’n, 803
P.2d 1284, 1288–90 (Utah Ct. App. 1990), with Provo City v. Utah
Labor Comm’n, 2015 UT 32, ¶ 20, 345 P.3d 1242, and Washington
(continued…)

20150788-CA 8 2017 UT App 175
 Cox v. Labor Commission

¶20 In sum, to recover for a medical condition, a claimant
must show that (1) the industrial accident contributed in any
degree to the claimant’s condition, such as by aggravating a pre-
existing condition, and (2) the aggravation is permanent, i.e., the
claimant’s medical condition never returned to baseline,
meaning the claimant’s condition immediately before the
accident. See Hutchings, 2016 UT App 160, ¶ 26; Zimmerman, 785
P.2d at 1131.

¶21 Here, the Commission applied the incorrect legal
standard for medical causation. The ALJ asked the medical
panel, “Is there a medically demonstrable causal connection
between the Petitioner’s medical problem and the industrial
accident as described in my Interim Order?” This question fails
to unambiguously identify the correct legal standard. It could be
read as asking whether the industrial accident contributed to
Cox’s medical condition in any degree (the correct question). But
it could also be read as asking whether the industrial accident
contributed to Cox’s medical condition to some greater degree
(the incorrect question). The medical panel seems to have
answered the latter question. It concluded that Cox’s condition

(…continued)
County School Dist. v. Labor Comm’n, 2015 UT 78, ¶ 43, 358 P.3d
1091. Cox’s reliance on Washington County is inapposite because
that case did not involve the causal standard for a pre-existing
condition, but the causal standard for “a subsequent non-
workplace injury.” See Washington County, 2015 UT 78, ¶ 37.
Provo City stated the general rule that “[u]nder the medical
causation test, the employee must show that an accident is the
but-for cause of the disability.” Provo City, 2015 UT 32, ¶ 20. Both
Zimmerman and Virgin are consistent with this general rule and
apply it in the specific context of an aggravation of a pre-existing
condition. See id.; Zimmerman, 785 P.2d at 1130–31; Virgin, 803
P.2d at 1288–90.

20150788-CA 9 2017 UT App 175
 Cox v. Labor Commission

was not causally related to his work activities. Nevertheless, its
report stated that the industrial accident “caused his already
developed spinal condition to worsen.” We read this statement
to mean that the accident contributed to Cox’s medical condition
in some degree. The medical panel went on to conclude that the
industrial accident did not “substantially” impair Cox’s spinal
function. Again, the question is not whether the accident
contributed substantially to Cox’s medical condition, but
whether it contributed “in any degree.” See Hutchings, 2016 UT
App 160, ¶ 26.

¶22 The Commission perpetuated the error. Relying on the
medical panel’s conclusion on medical causation, it began by
framing the issue for review as “whether [Cox] has shown that
his work accidents were the medical cause of his low-back
problems and need for surgery.” (Emphasis added.) In reaching
its conclusion, the Commission relied primarily on the medical
panel’s report, which made “clear that such injuries were not the
medical cause of his current condition because they did not
involve the same type of neurological symptoms and other
severe findings that prompted the surgery.” (Emphasis added.)
On this basis, the Commission denied benefits and concluded
that “the medical evidence shows that the relatively minor low-
back strain [Cox] suffered from the work accidents is not the
medical cause of any disability or his need for surgery.”
(Emphasis added.) But as we have explained, to be compensable,
an industrial accident need not be the medical cause of the
claimant’s permanent medical condition; rather, it must have
contributed to it in any degree. The Commission thus applied
the incorrect medical causation standard by requiring that Cox
show that his industrial accidents were the medical cause.

¶23 Moreover, the Commission failed to address the issue of
whether the aggravation of the pre-existing condition was
permanent or temporary. The Commission rejected Cox’s
argument that his “work injuries combined with his pre-existing
condition to medically cause his current condition” on the

20150788-CA 10 2017 UT App 175
 Cox v. Labor Commission

ground that the medical panel “recognized that [Cox’s] work
injuries negatively affected his spinal function, at least briefly,
but also made it clear that such injuries were not the medical
cause of his current condition . . . .” The Commission’s cursory
reference to the duration of the impact of Cox’s work injuries to
his spinal function is insufficient to show that it considered the
issue of whether the aggravation was permanent or temporary.
It is thus not clear that the Commission expressly determined
whether the aggravation of the pre-existing condition was
permanent or whether it returned to baseline. See Zimmerman,
785 P.2d at 1131.

¶24 Accordingly, the Commission denied Cox’s claim for
benefits based on an erroneous legal standard, and we set aside
its order.

¶25 Cox asks us to further hold that, under the correct legal
standard, the Commission lacked substantial evidence to
support its conclusions. Rather than make this determination, we
direct the Commission to “redetermine the matter under the
correct legal standard.” See Covington v. Board of Review of Indus.
Comm’n, 737 P.2d 207, 211 (Utah 1987). We leave to the
Commission’s discretion the question of whether to “review the
case based on the evidence already presented as reflected in the
record,” see Hartwig v. Johnsen, 2008 UT 40, ¶ 10, 190 P.3d 1242,
or to receive further evidence under the correct legal standard.

CONCLUSION

¶26 We set aside the Commission’s order and direct that it
undertake further proceedings using the correct legal standard
of medical causation.

20150788-CA 11 2017 UT App 175