(concurring):
I agree that this matter must be reconsidered by the Industrial Commission, since the administrative law judge obviously considered recovery precluded by the “accident” standard set forth in Sabo’s Electronic Service v. Sabo, 642 P.2d 722 (Utah 1982), and Billings Computer Corp. v. Tarango, 674 P.2d 104 (Utah 1983), cases subsequently rejected by this Court’s decision in Allen v. Industrial Commission, 729 P.2d 15 (Utah 1986). However, I would add a few comments for the benefit of the Commission on remand.
First, from the administrative law judge’s findings, it is clear that he considered the injury to be the unexpected result of fatigue and strain incurred in the course of employment. This is enough under Allen to support a finding that the injury occurred “by accident.”
Second, the administrative law judge’s findings also suggest that he considered medical causation to have been established, i.e., there was a physiological causal linkage between the injury and the job activities. Therefore, the only remaining question appears to be whether legal causation has been shown.
Third, with respect to legal causation, the facts indicate that under Allen, Holloway would be entitled to recover unless he brought to the job a preexisting condition that contributed to his injuries. If he did have such a preexisting injury, he would have to show that the job-related injuries were the product of “unusual or extraordinary exertion.” Allen v. Industrial Commission, at 25-26. The record is silent as to whether Holloway had a preexisting condition.
With respect to the focus of this case on remand — whether Holloway had a preexisting condition — I would observe that the preexisting condition of which Allen speaks need not be patent; in fact, it need not have been known or knowable to anyone before the injury. The sole question is whether the worker came to the workplace with a condition that increased his risk of injury. If he did and that condition contributed to the injury, then Allen’s higher standard of legal causation comes into play so as to place that worker on the same footing as one who did not come to work with a preexisting condition. See id., at 25-26. To rule otherwise would create the strong likelihood that a worker who has a preexisting condition and whose virtually inevitable injury simply happens to occur at work will be able to foist the cost of that injury on his employer when the workplace had little to do with causing the injury.
HOWE, J., concurs in the concurring opinion of ZIMMERMAN, J.