2020 UT App 86
THE UTAH COURT OF APPEALS
JBS USA AND AMERICAN ZURICH INSURANCE,
Petitioners,
v.
LABOR COMMISSION AND LEONTINE FOSTER,
Respondents.
Opinion
No. 20190694-CA
Filed June 4, 2020
Original Proceeding in this Court
Brad J. Miller, Attorney for Petitioners
Jared L. Mortenson, Attorney for Respondent
Leontine Foster
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
ORME, Judge:
¶1 JBS USA and its insurer, American Zurich Insurance,
(collectively, JBS) seek judicial review of the order of the Labor
Commission Appeals Board (the Commission) determining that
Leontine Foster is entitled to workers’ compensation benefits.
JBS both challenges the Commission’s factual findings and
contends that the Commission erred in concluding that the
aggravation of Foster’s preexisting conditions was legally caused
by the act of her jumping out of the cabin of her semi-truck
under exigent circumstances. We decline to disturb the
Commission’s order.
JBS USA v. Labor Commission
BACKGROUND 1
¶2 Foster, a professional truck driver with 22 years of
experience, began working for JBS in early August 2018. She
came to her new employment with preexisting conditions in her
right knee and lower back. In 1996, she underwent knee
replacement surgery on her right knee. In 2015, she “was
diagnosed with a mild disc bulge with annular fissuring and
moderate facet arthrosis at the L5-S1 level of her lumbar spine.”
And in 2017, Foster slipped on an oily surface, injuring both her
back and right knee. Foster did not have any preexisting injuries
to her left knee.
¶3 On August 19, 2018, Foster was driving a semi-truck on a
freeway in San Bernardino County, California, when she noticed
an unusual odor, “like something [was] burning.” She pulled
over and was about to call JBS to report a mechanical issue when
she heard “a loud explosion” coming from what appeared to be
the front passenger’s side of the vehicle. Foster immediately
feared that the truck would “blow[] up,” and she exited “as fast
as possible.” She did so by opening the driver’s side door,
standing with both feet on the top stair located approximately 40
inches above the ground, jumping away from the truck, and
landing on the ground with both feet. This deviated from her
usual method of exiting the truck, which involved a three-point
stance “where at all times three parts of your body, either both
feet and one hand or two hands and one foot is touching the
truck as you exit” via steps, while facing the vehicle.
¶4 Upon landing on the ground, Foster “just kept moving”
and ran to the front passenger’s side of the truck where she
believed the noise had originated. There, she found that one of
1. “In reviewing an order from the Commission, we view the
facts in the light most favorable to the Commission’s findings
and recite them accordingly.” O’Connor v. Labor Comm’n, 2020
UT App 49, n.1.
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the tires had blown out and was on fire. Because Foster knew
that there were two 75-gallon fuel tanks under the hood on each
side of the truck, she did not risk climbing back into the cabin to
retrieve the fire extinguisher—or even her purse. Instead, Foster
distanced herself from the burning vehicle and called 911, then
JBS. While waiting for first responders to arrive, Foster heard
additional explosions, and the fire spread throughout the truck.
Firefighters allowed the fire to burn itself out. The fire destroyed
the vehicle and its contents.
¶5 Two days later, on August 21, JBS concluded that the fire
was the result of Foster’s improper use of braking equipment
and terminated her employment. Four days later, Foster
provided JBS with a written statement describing the incident. In
it, she stated that although she did not feel pain immediately
after jumping and running away from the truck, she had since
developed pain in her legs and back. Foster at first attempted to
self-treat her injuries by heating and icing her knees and using a
heating pad on her lower back, but she sought medical care on
August 29. Foster’s treating physician and JBS’s medical
consultant both concluded that the aggravation of Foster’s
preexisting knee and lower back injuries was medically caused
by her act of jumping out of the truck, as was the new injury to
her left knee.
¶6 Foster filed for workers’ compensation benefits in late
September. An administrative law judge (the ALJ) held a hearing
in March 2019, and issued findings of fact, conclusions of law,
and an order granting workers’ compensation benefits to Foster.
JBS appealed the ALJ’s order to the Commission. The
Commission affirmed the ALJ. It adopted the ALJ’s findings of
fact and likewise determined that Foster was entitled to workers’
compensation benefits. Regarding legal causation, the
Commission held that “Foster’s work activity under calmer
conditions may not have involved an unusual exertion. . . .
[H]owever, when considering the dangerous and exigent
circumstances in this case, . . . Foster’s work activity involved an
unusual exertion.” JBS now seeks judicial review of the
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Commission’s order. See Utah Code Ann. § 34A-2-801(9)(a)
(LexisNexis 2019).
ISSUES AND STANDARDS OF REVIEW
¶7 JBS raises two issues in its petition for judicial review.
First, it asserts that the Commission’s “factual findings are not
supported by substantial evidence.” “When the Labor
Commission’s factual determinations are properly before us on
review, we review them under the substantial evidence standard
of review, examining the whole record to determine whether a
reasonable mind might accept as adequate the evidence
supporting the decision.” Quast v. Labor Comm’n, 2017 UT 40,
¶ 15, 424 P.3d 15 (quotation simplified).
¶8 Second, JBS contends that the Commission erroneously
determined that Foster met the more stringent standard of legal
causation required for an award of benefits to an employee
whose preexisting conditions contributed to her work-related
injuries. See generally Allen v. Industrial Comm’n, 729 P.2d 15
(Utah 1986) (establishing a heightened standard for proving
legal causation in the context of an employee with a preexisting
condition). This issue “presents a traditional mixed question of
law and fact.” Murray v. Labor Comm’n, 2013 UT 38, ¶ 24, 308
P.3d 461. And because “the ultimate question is the legal effect
of the facts,” i.e., whether a given set of facts is objectively
“unusual[],” “rather than witness credibility or demeanor,” our
review of the “ultimate question” is non-deferential. 2 Id. ¶ 40.
2. Because JBS has not met its burden of persuasion on its
challenge to the finding that Foster jumped out of the truck
under exigent circumstances, see infra ¶¶ 9–12, we disregard
JBS’s factual challenge in addressing the legal causation issue.
Instead, we consider the legal causation issue only in the context
of the Commission’s factual findings. See Quast v. Labor Comm’n,
(continued…)
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ANALYSIS
I. Challenge to Findings of Fact
¶9 JBS argues that the Commission’s finding that Foster
jumped out of the truck under exigent circumstances is not
supported by substantial evidence because the ALJ and the
Commission did not “place proper weight on two separate
officially recorded documents that describe the incident.”
Specifically, JBS refers to a report from the San Bernardino
County Fire Department dated August 21, 2018—two days after
the incident—stating that Foster pulled over upon detecting a
burning smell and heard an explosion only after she had already
exited the truck, and a medical record dated August 29, 2018,
which stated that Foster “pulled over when she smelled the scent
of fuel” and “[i]mmediately upon exiting the truck, the truck
‘burst into flames.’” Foster, however, testified that she was still
inside the truck when she heard the first explosion, which
version of events was also consistent with the written statement
she provided to JBS on August 25, 2018—four days prior to her
August 29 medical visit. Regarding this discrepancy, the
Commission stated that although the fire department’s report
“differs slightly” from Foster’s version of events, such a
difference was insufficient to call her testimony into question.
The ALJ also “consider[ed] [the] inconsistency to be extremely
minor and far too insignificant to support a conclusion that
[Foster] is not credible,” especially where the ALJ did not “have
any difficulty seeing how an employee of the San Bernardino
[County] Fire Department might have missed or simplified
certain details in memorializing [Foster’s] account of the
(…continued)
2017 UT 40, ¶ 19, 424 P.3d 15 (“While an appellate court is not
required to assume that the record supports the findings of the
fact-finder in the absence of marshaling, it may do so at its
discretion.”).
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industrial accident when making a report hours, or possibly
days, after hearing that account.”
¶10 Relatedly, JBS also contends that the Commission erred in
accepting Foster’s explanation that she attempted to self-treat
rather than consult a doctor for several days following the
incident because she lacked the resources to cover the costs of
medical care after JBS terminated her employment. JBS asserts
that her delay in seeking treatment and in filing a formal report
of injury with JBS “bear[s] on [Foster’s] credibility and it was in
error for the ALJ not to place more weight on these
discrepancies.”
¶11 Because “it is the province of the Commission . . . to view
all the evidence submitted as a whole and then make an
appropriate determination,” appellate courts will not review the
Commission’s credibility assessments or reweigh evidence
“unless the petitioner is able to show that the Commission’s
findings and conclusions regarding causation are not supported
by substantial evidence.” Bade-Brown v. Labor Comm’n, 2016 UT
App 65, ¶ 19, 372 P.3d 44 (emphasis added) (quotation otherwise
simplified). “Substantial evidence,” in turn, “is more than a mere
scintilla of evidence though something less than the weight of
the evidence, and the substantial evidence test is met when a
reasonable mind might accept as adequate the evidence
supporting the decision.” Foye v. Labor Comm’n, 2018 UT App
124, ¶ 16, 428 P.3d 26 (quotation simplified). To show that a
disputed finding is not supported by substantial evidence, “the
party challenging the factual findings must marshal all of the
evidence and demonstrate that, despite the facts supporting the
decision, the findings are not supported by substantial
evidence.” Quast v. Utah Labor Comm’n, 2017 UT 40, ¶ 19, 424
P.3d 15 (quotation simplified). And “[w]hile an appellate court is
not required to assume that the record supports the findings of
the fact-finder in the absence of marshaling, it may do so at its
discretion.” Id.
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¶12 Here, JBS has highlighted only the evidence it believes
undermines Foster’s credibility and has not marshaled the
evidence supporting the Commission’s factual findings.
Accordingly, JBS has not met its burden of persuasion in this
proceeding for judicial review, and we do not further address
this issue. See Widdison v. Kirkham, 2018 UT App 205, ¶ 9, 437
P.3d 555 (“Although failing to marshal the evidence is no longer
considered a technical deficiency, an appellant failing to marshal
all relevant evidence presented at trial which tends to support
the findings and demonstrate why the findings are clearly
erroneous will almost certainly fail to carry their burden of
persuasion on appeal.”) (quotation simplified). We now turn to
the primary issue concerning legal causation under Allen.
II. Legal Causation
¶13 The Workers’ Compensation Act provides benefits to
workers injured in accidents “arising out of and in the course of”
employment. Utah Code Ann. § 34A-2-401(1) (LexisNexis 2019).
To be compensated for an injury under the act, an employee
must establish that (1) the injury was the result of an accident,
and (2) there is “a causal connection between the injury and the
employment.” Murray v. Labor Comm’n, 2013 UT 38, ¶ 44, 308
P.3d 461 (quotation simplified). It is undisputed that Foster’s
injury was the result of a workplace accident.
¶14 To satisfy the second element, an employee must show
that the accident was both the medical and legal cause of her
injury. See id. ¶ 45. Generally, “medical and legal causation
requirements are one and the same, and the employee need only
prove medical causation,” id., which requires that the employee
“show by evidence, opinion, or otherwise that the stress, strain,
or exertion required by his or her occupation led to the resulting
injury or disability,” Allen v. Industrial Comm’n, 729 P.2d 15, 27
(Utah 1986). However, when an employee’s preexisting
condition causally contributed to the workplace injury, the
employee must meet a heightened standard of legal causation.
Murray, 2013 UT 38, ¶ 45. This heightened standard “is
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necessary to distinguish those injuries which coincidentally
occur at work because a preexisting condition results in
symptoms which appear during work hours without any
enhancement from the workplace.” Id. ¶ 46 (quotation
simplified). It “is not meant to prevent workers with preexisting
conditions from recovering benefits.” Fastenal v. Labor Comm’n,
2020 UT App 53, ¶ 14 (quotation simplified). See Allen, 729 P.2d
at 25 (“The aggravation or lighting up of a pre-existing disease
by an industrial accident is compensable.”) (quotation
simplified).
¶15 Under this heightened standard, the employee “must
show that ‘the employment contributed something substantial to
increase the risk [the employee] already faced in everyday life
because of [the preexisting] condition.’” Murray, 2013 UT 38,
¶ 46 (quoting Allen, 729 P.2d at 25). This involves a two-step
inquiry: “first, we must characterize the employment-related
activity that precipitated the employees’ injury, taking into
account the totality of the circumstances; and second, we must
determine whether this activity is objectively unusual or
extraordinary.” Id. ¶ 48. The overall 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. (quoting Allen, 729 P.2d at 26).
¶16 The Commission found that the sound of an explosion
caused Foster to become fearful and “to hurry and jump away
from the truck” at a height of approximately 40 inches—i.e.,
three feet and four inches, which is about ten inches higher than
the distance between the floor and the top of a typical dining
room table 3—and land on both feet. The Commission found that
this action medically caused the aggravation of Foster’s
3. “[T]he standard height for a dining room table is 30 inches
off the ground.” Dining Room Table Heights, Furniture.com,
https://www.furniture.com/tips-and-trends/dining-room-table-
heights [https://perma.cc/E7EK-YJDE].
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preexisting injuries in her right knee and lower back. 4 At issue is
whether Foster’s action in jumping from the truck, taking the
totality of these circumstances into consideration, is unusual,
that is, one that is not “generally expected of people in today’s
society.” Id. (quotation simplified). We conclude that it is.
¶17 Both parties direct our attention to Miera v. Industrial
Commission, 728 P.2d 1023 (Utah 1986), in which our Supreme
Court held that “jump[ing] into an eight-foot hole from a four-
foot platform at thirty-minute intervals” 5 was an unusual
activity that satisfied the heightened legal cause standard. Id. at
1024–25. As JBS points out, the circumstances surrounding the
jumps in Miera are distinguishable from the jump in the present
case. Apart from the approximately eight-inch difference in
height between the jumps in Miera (48 inches) and the one Foster
undertook (40 inches), 6 Foster completed a single jump where
Miera involved a total of sixteen jumps over a four-hour period.
Id. at 1024. See Fastenal, 2020 UT App 53, ¶¶ 15–16 (stating that
“[r]epetition of a workplace activity can constitute an objectively
4. Because Foster had no preexisting injury to her left knee, the
heightened standard of legal causation does not apply to that
injury. JBS does not contend otherwise.
5. To clarify, this involved two consecutive four-foot jumps. The
first jump was “four feet onto the shelf,” followed by a second
jump into the bottom of the eight-foot hole. Miera v. Industrial
Comm’n, 728 P.2d 1023, 1024 (Utah 1986). This was done “a total
of eight times at thirty-minute intervals.” Id.
6. We do not mean to suggest that a jump from under a certain
threshold height cannot be unusual as a matter of law. Instead,
each jump (like any other action) must be evaluated in light of
the totality of the circumstances. See Murray v. Labor Comm’n,
2013 UT 38, ¶ 47, 308 P.3d 461 (“[I]n determining whether the
employment activity that precipitated [an] injury was unusual
. . . , we must consider the totality of the circumstances.”).
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unusual or extraordinary exertion” and discussing Miera in that
context). Significantly, however, the jumps in Miera were
planned events, capable of care in execution and, presumably,
improvement in execution with practice, while Foster’s jump
was not planned and was the product of an emergency.
Accordingly, Miera is not dispositive of this case.
¶18 JBS asserts that Foster’s action was similar to the everyday
activity of “jumping down from a truck bed or from a low
wall.” 7 And because Foster “did not jump directly from [the] cab
of the truck to the ground,” but instead “made the first step out
of the cab and then took the jump,” JBS asserts that such an
action “is similar to a person lowering himself down before
mak[ing] the jump” from a truck bed. We disagree.
¶19 Foster’s jump is not comparable to the activity JBS
describes. As an initial matter, Foster did not merely jump down
from the cabin of the truck. The Commission specifically found,
with our emphasis, that Foster “jump[ed] away from the truck.”
And more importantly, the exigent circumstances surrounding
7. Citing a study, JBS also asserts that “[i]t is common for truck
drivers to jump down from their cabs without the use of hand
[rails], despite recommendations to use the three point stance.”
See Fadi A. Fathallah & John P. Cotnam, Maximum Forces
Sustained During Various Methods of Exiting Commercial Tractors,
Trailers and Trucks, 31 Applied Ergonomics 25, 25–33 (2000). But
this assertion is limited to the employment context, and it does not
address whether such an activity (or something comparable) is
“generally expected of people in today’s society” outside of the
trucking industry. Murray, 2013 UT 38, ¶ 48 (quotation
simplified). Moreover, as will be discussed, Foster did not, as JBS
asserts, merely “jump down” from the cab of the truck. Rather,
she jumped away from the truck under exigent circumstances
that compelled her to do so without the usual care one might
take when undertaking a routinized jump that is “all in a day’s
work.”
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the jump caused Foster to hurry and prevented her from taking
the precautionary measures not to land awkwardly that
individuals under JBS’s analogous activity typically would have
taken. JBS has not suggested an analogous activity expected of the
general public that would include these additional important
circumstances, and we likewise struggle to conceive of such an
activity. We therefore conclude that Foster’s jump constituted an
unusual exertion that readily satisfied the heightened legal cause
standard required for individuals with preexisting conditions.
CONCLUSION
¶20 JBS has not carried its burden of persuasion in
challenging the Commission’s factual findings. And having
considered the totality of the circumstances surrounding Foster’s
jump, we hold that the Commission correctly determined that
Foster satisfied the heightened standard of legal causation.
Accordingly, we decline to disturb the Commission’s order.
20190694-CA 11 2020 UT App 86