2022 UT 31
IN THE
SUPREME COURT OF THE STATE OF UTAH
JBS CARRIERS and AMERICAN ZURICH INSURANCE COMPANY,
Respondents,
v.
UTAH LABOR COMMISSION and DAVID HICKEY,
Petitioners.
No. 20210321
Heard November 10, 2021
Filed June 30, 2022
On Certiorari to the Utah Court of Appeals
Attorneys:
Brad J. Miller, Rachel Konishi, Greenwood Village, CO, for
respondents
Chris Hill, Salt Lake City, for petitioner Utah Labor Commission
Gary E. Atkin, Kenneth E. Atkin, Salt Lake City, for petitioner
David Hickey
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, JUSTICE PEARCE, and JUDGE WELCH
joined.
ASSOCIATE CHIEF JUSTICE LEE authored a dissenting opinion.
Due to his retirement, JUSTICE HIMONAS did not participate herein;
DISTRICT JUDGE TERESA L. WELCH sat.
JUSTICE HAGEN became a member of the Court on May 18, 2022,
after oral argument in this matter, and accordingly did not
participate.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 David Hickey worked as a long-haul truck driver for JBS
Carriers (JBS). At the end of a three-day drive from Utah to
California, which included a stretch in which he drove for
approximately nine hours with only one break and little
JBS CARRIERS v. HICKEY
Opinion of the Court
movement of his left leg, he began experiencing swelling in that
leg and shortness of breath. After finishing his route, he went to a
hospital in California. He was diagnosed with a blood clot in his
left leg (deep vein thrombosis or DVT), which caused blood clots
in his lungs (pulmonary emboli).
¶2 After his hospitalization, Hickey could not return to work
as a truck driver and sought workers‘ compensation. He asserted
that the DVT and pulmonary emboli arose from his drive to
California for JBS. JBS disputed Hickey‘s workers‘ compensation
claim. It argued that his injuries were actually caused by his
―super obesity,‖ a term used in medical literature ―to describe a
person with a BMI over 50.‖ And JBS asserted that super obesity
should be considered a preexisting condition under these
circumstances.
¶3 Whether workers‘ compensation claimants have a
relevant preexisting condition is significant because, if they do, to
obtain compensation they must show not only medical
causation—in other words, that the injury is ―medically the
result‖ of the employment activity, Allen v. Indus. Comm’n,
729 P.2d 15, 27 (Utah 1986)—but also legal causation. To show
legal causation, claimants must show that the employment
activity ―contributed something substantial to increase the risk
[they] already faced in everyday life‖ due to their preexisting
condition. Id. at 25. We have said that to make such a showing, a
workers‘ compensation claimant must demonstrate that the
employment activity that precipitated the injury was ―unusual or
extraordinary‖ when compared to normal life activities. Murray v.
Utah Lab. Comm’n, 2013 UT 38, ¶ 48, 308 P.3d 461.
¶4 Here, we are asked to determine whether Hickey‘s long
drive in a commercial truck is an unusual or extraordinary
activity in comparison to the ordinary activities people perform in
their everyday, nonwork lives. We conclude that it is unusual.
And because Hickey has therefore shown that his employment
activity was the legal cause of his DVT and pulmonary emboli, we
need not address whether super obesity is a preexisting condition,
since he is able to show legal causation even if it was.
¶5 Accordingly, we reverse the court of appeals‘ holding
that Hickey‘s long-haul truck drive was similar to typical,
everyday activities. Further, we vacate the court‘s conclusion that
there was substantial evidence in support of the administrative
law judge‘s (ALJ‘s) finding that Hickey‘s ―super obesity‖ was a
preexisting condition because it is unnecessary to the resolution of
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Hickey‘s claim. And we reinstate the decision of the Labor
Commission Appeals Board.
BACKGROUND
¶6 Hickey worked for JBS as a long-haul truck driver. Over
the course of three days, Hickey drove a route for JBS that began
in Tremonton, Utah, and ended in Madera, California. Starting
late on the second day, Hickey drove for six hours and twenty-
five minutes straight, followed by another two hours and twenty-
five minutes without stopping. He drove an automatic
transmission truck that did not require the use of his left leg, so he
rarely moved that leg while driving the truck. And it was his
general practice to remain in the driver‘s seat when he stopped for
loading and unloading, so he likely spent more time in the truck
than his driving logs indicated.
¶7 After arriving at Madera on the third and final day of the
trip, Hickey began experiencing swelling in his left leg and
shortness of breath. He went to a local hospital where he was
admitted for treatment. He was released after three days, but was
admitted to another hospital ten days later. Hickey was diagnosed
with DVT and pulmonary emboli. He was hospitalized for a total
of sixteen days. And when he was finally released, he was unable
to return to work and applied for workers‘ compensation.
¶8 In his workers‘ compensation claim, Hickey argued that
the DVT and pulmonary emboli arose from his employment with
JBS as a long-haul truck driver. Specifically, he claimed that the
blood clots were caused by the second day of his trip, when he
drove for almost nine hours with only one break and without
moving his left leg.
¶9 JBS disputed Hickey‘s workers‘ compensation claim,
arguing that his injuries were merely the result of a preexisting
condition—super obesity—and not his employment. The dispute
went before an ALJ, who appointed a medical panel and
ultimately determined that Hickey had failed to show legal
causation—in other words, that his employment contributed
something substantial to increase his risk of injury.
¶10 The ALJ found that Hickey‘s super obesity was a
preexisting condition, so he applied the test we adopted in Allen v.
Industrial Commission, 729 P.2d 15 (Utah 1986), to determine
whether Hickey‘s employment was the legal cause of his injuries.
The Allen test is used to distinguish between injuries resulting
from a preexisting condition that only coincidentally occur while
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Opinion of the Court
an individual is working and injuries that were precipitated by an
employment activity that increased the risk of injury normally
faced by the worker in nonwork life. Id. at 25. To make this
distinction, we have instructed the agency or court to: (1) consider
the totality of the circumstances to determine what workplace
activity precipitated the injury; and (2) determine whether that
activity was objectively unusual or extraordinary when compared
to normal life activities. Murray v. Utah Lab. Comm’n, 2013 UT 38,
¶ 48, 308 P.3d 461.
¶11 After considering the totality of the circumstances
surrounding Hickey‘s drive to California, the ALJ concluded that
it was not an unusual or extraordinary activity under part two of
the Allen test. Because the ALJ denied Hickey‘s claim based on
lack of legal causation, he never reached the question of medical
causation and did not calculate Hickey‘s medical expenses or
disability compensation.
¶12 Hickey appealed the decision to the Labor Commission
Appeals Board (Board), arguing that the medical panel had not
been qualified to assess his injuries, that the ALJ erred in his
causation analysis by looking for the greatest risk factor leading to
Hickey‘s injuries rather than whether Hickey‘s employment
activity increased the risk of his injuries, and that super obesity
was not a preexisting condition.
¶13 The Board resolved Hickey‘s claim by determining that
he had satisfied the Allen test. It concluded that Hickey‘s long-
haul truck drive was an unusual activity when compared to
nonwork life. And for this reason, the Board did not reach the
question of whether Hickey‘s super obesity was a preexisting
condition, because even assuming it was, he was able to show that
the employment activity was the legal cause of his injury.
¶14 The Board remanded the case back to the ALJ ―to
complete the adjudication of Mr. Hickey‘s claim.‖ The ALJ
restated his previous conclusion that Hickey‘s super obesity was a
preexisting condition and adopted the Board‘s holding that
Hickey had satisfied the Allen test for legal causation. The ALJ
also determined that Hickey‘s injuries were medically caused by
his work as a commercial truck driver and accordingly awarded
Hickey workers‘ compensation benefits.
¶15 JBS then appealed the ALJ‘s decision to the Board,
arguing among other things that the ALJ had misapplied the Allen
standard of ―unusual or extraordinary‖ activity. The Board
affirmed the ALJ, and again found it unnecessary to determine
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Opinion of the Court
whether Hickey had a preexisting condition because even if he
did, he had shown legal causation. JBS then appealed to the court
of appeals.
¶16 The court of appeals reversed the Board, agreeing with
JBS that Hickey‘s work activities were not unusual or
extraordinary under Allen. JBS Carriers v. Lab. Comm’n,
2021 UT App 44, ¶ 25, 489 P.3d 221. The court of appeals
discounted some of the employment circumstances considered by
the Board because they had not been ―required‖ by the
employment, noting that the Board had not found that Hickey
was prevented from taking breaks and that ―no requirement of the
job prevented Hickey from stretching his inactive left leg while
operating the truck with his other limbs.‖ Id. ¶ 23. And the court
―perceive[d] no meaningful distinction between sitting for a long
time in a truck cab and sitting for a long time in a passenger car,
or sitting for a long time in an airplane seat, or even sitting for a
long time on a couch in front of a television screen‖—activities the
court considered neither ―unusual [n]or extraordinary.‖ Id. ¶ 24.
¶17 Because the court of appeals determined Hickey could
not show his ―required‖ employment activities were the legal
cause of his injuries under Allen, it remanded the case to the Board
to determine in the first instance if Hickey‘s super obesity was a
preexisting condition. Id. ¶ 28. But despite acknowledging that the
court of appeals ―do[es] not directly review the decisions of an
ALJ,‖ the court opined that there was substantial evidence to
support the ALJ‘s finding that Hickey had a preexisting condition.
Id. ¶¶ 28, 30, 32–33.
¶18 Hickey petitioned for certiorari, which we granted. We
are asked to decide whether the court of appeals erred in
(1) reversing the Board‘s determination that Hickey‘s long-haul
commercial truck drive was an unusual or extraordinary activity
under the Allen test; and (2) advising that there was substantial
evidence to support the ALJ‘s finding that Hickey‘s super obesity
was a preexisting condition, when the Board had not yet
addressed that question.
¶19 We exercise jurisdiction under Utah Code section
78A-3-102(3)(a).
STANDARD OF REVIEW
¶20 ―On certiorari, we review the decision of the court of
appeals for correctness, giving no deference to its conclusions of
law.‖ State v. Richins, 2021 UT 50, ¶ 39, 496 P.3d 158 (citation
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omitted). ―And ‗[t]he correctness of the court of appeals‘ decision
turns, in part, on whether it accurately reviewed the [agency‘s]
decision under the appropriate standard of review.‘‖ Murray v.
Utah Lab. Comm’n, 2013 UT 38, ¶ 7, 308 P.3d 461 (alterations in
original) (citation omitted).
ANALYSIS
¶21 We first address Hickey‘s claim that the court of appeals
erred when it determined he had not shown legal causation. The
court‘s conclusion was based on its determination that Hickey‘s
long-haul drive was not an unusual or extraordinary activity
under Allen. But we agree with Hickey that driving a commercial
truck for approximately nine hours in one day with only one
break, with a motionless left leg, is not equivalent to ordinary,
everyday nonwork activities.
¶22 Since we conclude that Hickey‘s employment activities
were the legal cause of his injuries—in other words, that Hickey‘s
extended truck drive increased the risk of these injuries—we need
not determine whether Hickey‘s super obesity was a preexisting
condition or whether the court of appeals erred in addressing the
ALJ‘s findings on this issue. And we vacate the court of appeals‘
analysis on this point.
I. LEGAL CAUSATION
¶23 Assuming for the sake of argument that Hickey‘s super
obesity was a preexisting condition here, the core of the dispute
before us is legal causation: Did Hickey‘s long drive to California
increase the risk that he would suffer DVT and pulmonary
emboli? Or would his injuries have happened in any event
because of his super obesity, and it was only coincidental that the
DVT and pulmonary emboli manifested at the end of his drive?
¶24 The Workers‘ Compensation Act provides compensation
to ―[a]n employee . . . who is injured by accident arising out . . . of
and in the course of the employee‘s employment, wherever such
injury occurred, if the accident was not purposely self-inflicted.‖
UTAH CODE § 34A-2-401(1). We have interpreted the language
―arising out of and in the course of the employee‘s employment‖
as ―requir[ing] proof of a causal connection between the injury
and the worker‘s employment duties.‖ Allen v. Indus. Comm’n,
729 P.2d 15, 22, 24–25 (Utah 1986) (citation omitted).
¶25 It becomes more difficult to determine whether an injury
―ar[ose] out of and in the course of the employee‘s employment‖
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when the employee has a preexisting condition. We addressed
this challenge in Allen, explaining that,
The causation requirement makes it necessary to
distinguish those injuries which (a) coincidentally
occur at work because a preexisting condition
results in symptoms which appear during work
hours without any enhancement from the
workplace, and (b) those injuries which occur
because some condition or exertion required by the
employment increases the risk of injury which the
worker normally faces in his everyday life.
Id. at 25.
¶26 To help determine causation when a claimant has a
preexisting condition, we adopted a test from Arthur Larson‘s
treatise, The Law of Workmen’s Compensation. Id. at 25–27 (citing
ARTHUR LARSON, THE LAW OF WORKMEN‘S COMPENSATION
§ 38.83(b), at 7–278 (1986)). ―Under that test, a claimant must
establish that the conditions or activities of his job were both the
medical cause and the legal cause of his injury.‖ Murray v. Utah
Lab. Comm’n, 2013 UT 38, ¶ 45, 308 P.3d 461. To establish medical
causation, a claimant must show ―there is a medically
demonstrable causal link between the work-related exertions and
the unexpected injuries that resulted from those strains.‖ Allen,
729 P.2d at 27. If a claimant has no relevant preexisting condition,
the claimant need show only medical causation. See id. at 26. But a
claimant with a relevant preexisting condition must also show
―that the employment contributed something substantial to
increase the risk he already faced in everyday life because of his
condition.‖ Id. at 25.
¶27 There is no dispute that Hickey has demonstrated
medical causation, so only legal causation is at issue here. In
Murray v. Utah Labor Commission, we further distilled the legal
causation test from Allen: the first step is to ―characterize the
employment-related activity that precipitated the employee[‘s]
injury, taking into account the totality of the circumstances.‖
2013 UT 38, ¶ 48. This is a question of fact, id. ¶ 49, which we
review for substantial evidence, see UTAH CODE § 63G-4-403(4)(g).
The second step is to ―determine whether this activity is
objectively unusual or extraordinary‖ when compared with
typical, nonemployment life. Murray, 2013 UT 38, ¶ 48. ―This . . .
determination is a mixed question of law and fact,‖ Price River
Coal Co. v. Indus. Comm’n of Utah, 731 P.2d 1079, 1082 (Utah 1986),
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because it requires the agency to apply ―a legal standard to a set
of facts unique to a particular case,‖ Murray, 2013 UT 38, ¶ 24
(citation omitted). But ―the question of whether a set of facts falls
within a legal standard is itself a question of law,‖ id. ¶ 33, so we
do not defer to the Board‘s legal determination of whether an
employment activity was unusual or extraordinary, see id. ¶ 40.
A. Step One: Totality of the Circumstances
¶28 Under the initial Allen inquiry, the ―agency must
determine as a matter of fact exactly what were the employment-
related activities of the injured employee.‖ Price River Coal Co.,
731 P.2d at 1082. In other words, ―in determining whether the
employment activity that precipitated [Hickey‘s] injury was
‗unusual‘ under Allen, we must consider the totality of the
circumstances.‖ See Murray, 2013 UT 38, ¶ 47.
¶29 The court of appeals noted that the facts of Hickey‘s
employment activity prior to his injuries were not in dispute:
The [Board] described the relevant portion of
Hickey‘s employment activity as ―driving for more
than six hours without a break and then driving for
almost two and a half hours more later in the same
day.‖ Additionally, the [Board] noted that Hickey‘s
truck ―had an automatic transmission that did not
require use of his left leg to engage the truck‘s
pedals,‖ and noted that Hickey ―would usually
remain in the driver‘s seat as his truck was being
loaded and unloaded,‖ which meant ―that his
driving time alone did not fully account for the time
he spent sitting in the truck.‖
JBS Carriers v. Lab. Comm'n, 2021 UT App 44, ¶ 19, 489 P.3d 221.
¶30 However, the court of appeals discounted some of the
Board‘s factual findings and inferences because they related to
activity that was not specifically ―required‖ by JBS. In particular,
the court disregarded the Board‘s finding that Hickey had not
moved his left leg while driving because ―Hickey offered no
evidence that his employment duties required him to keep his leg
motionless while driving.‖ Id. (emphasis added). And the court
discounted the Board‘s finding that Hickey had spent more time
sitting in his truck than his driving logs indicated because ―no
party offered any evidence that Hickey‘s employment duties
required him to drive for any particular length of time before
taking a break.‖ Id. (emphasis added).
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¶31 The court‘s focus on whether the manner in which Hickey
conducted his employment activities was required by JBS was
based on its interpretation of language from Allen. As quoted
above, we stated in Allen that the legal causation test helps to
identify ―those injuries which occur because some condition or
exertion required by the employment increases the risk of injury
which the worker normally faces in his everyday life.‖ 729 P.2d at
25 (emphasis added).
¶32 But we did not intend for this phrase to narrow the
circumstances relevant to legal causation to only those actions
specifically required by the employer. Generally, the term
―required‖ means ―stipulated as necessary to be done, made, or
provided.‖ Required, MERRIAM-WEBSTER DICTIONARY,
https://www.merriam-webster.com/dictionary/required (last
visited June 14, 2022). ―Required‖ can be used in common
parlance at both a general and specific level—for example,
Hickey‘s employment ―required‖ him to drive to California,
although it may not have specifically ―required‖ him to drive
without moving his leg or to stay in his truck during stops for
loading and unloading.
¶33 We clarify that in Allen, we were using the phrase
―required by the employment‖ at a general level. A ―condition or
exertion required by the employment‖ refers generally to
conditions, exertions, or activities that are employment-related as
opposed to those activities that are not associated with work. This
language does not mean that to be relevant to the Allen totality-of-
the-circumstances inquiry, the specific manner in which the
claimant performed the work activity had to be required by the
employer. For example, in Allen, we described the claimant‘s
relevant workplace activity as ―moving and lifting several piles of
dairy products weighing thirty to fifty pounds in the confined
area of the cooler.‖ 729 P.2d at 28. We remanded for additional
fact-finding to determine ―how many crates were moved by the
claimant, the distance the crates were moved, the precise weight
of the crates, and the size of the area in which the lifting and
moving took place.‖ Id. Notably, we did not ask if the employer
required the claimant to lift a certain number of crates at a time or
use a certain technique. This is because the relevant ―totality of
the circumstances‖ includes all work-related activity that
precipitated the injury. The limiting factor is whether the activity
was related to the claimant‘s employment, not whether the
employer required the claimant to perform the work in the
specific manner that caused the injury.
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¶34 The totality-of-the-circumstances analysis in Murray also
demonstrates this point. In that case, a park ranger stumbled on a
boat while on patrol, and we described the workplace activity by
referring to the position in which he was standing, what he was
holding, what he was wearing, and the manner in which he fell.
2013 UT 38, ¶¶ 49–50. We did not address whether he had been
required to stand in a certain way, or to balance himself in such a
manner. The required employment activity was the act of
engaging in boat patrol—not the exact manner in which the
claimant did so. Id.
¶35 To read ―required by the employment‖ granularly causes
the Allen framework to diverge from the language of the Workers‘
Compensation Act. The Act ―represents a compromise between
employee and employer.‖ Gudmundson v. Del Ozone, 2010 UT 33,
¶ 28, 232 P.3d 1059. Under this compromise, ―workers give up
their right to sue their employers in tort for workplace injuries. In
return, workers are granted the right to statutory remedies that
are afforded without regard to proof of fault.‖ Helf v. Chevron
U.S.A. Inc., 2015 UT 81, ¶ 89, 361 P.3d 63 (Lee, A.C.J., dissenting).
This bargain allows workers to recover workers‘ compensation,
even if they were negligent or at fault in some way, so long as
―the accident was not purposely self-inflicted.‖ UTAH CODE
§ 34A-2-401(1). The Workers‘ Compensation Act even allows
employees to receive workers‘ compensation ―when injury is
caused by the willful failure of the employee‖ to obey reasonable
safety rules, but with a fifteen percent deduction from the award.
Id. § 34A-2-302(3)(a).
¶36 Overly narrowing the relevant employment activities
results in a distortion of this hallmark of the Workers‘
Compensation Act. The court of appeals noted that Hickey
―presented no evidence that the delivery requirements of the trip
in question made it impractical to take breaks‖ and that ―no
requirement of the job prevented Hickey from stretching his
inactive left leg while operating the truck with his other limbs.‖
JBS Carriers, 2021 UT App 44, ¶ 23. By analyzing whether Hickey
was required to complete his work as he did, the court introduced
an element of comparative fault that the workers‘ compensation
framework was designed to avoid. The facts relevant to a
workers‘ compensation claim include all of the work-related
activities that precipitated the worker‘s injuries—not what they
could or should have been.
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¶37 The totality of the circumstances found by the Board were
that Hickey drove a route from Utah to California over the course
of three days, which involved a particular stretch in which he
drove for almost six-and-a-half hours straight followed by another
two-and-a-half-hour drive. He was stationary during this time,
and in particular did not move his left leg because the truck had
an automatic transmission. Further, Hickey provided evidence
that as a general practice, he remained seated in his truck during
stops for loading and unloading. The Board inferred from this that
Hickey had likely followed this same practice during his drive to
California, and therefore ―his driving time alone did not fully
account for the time he spent sitting in the truck.‖ Id. ¶ 19. All of
these facts are included in the ―totality of the circumstances‖
relevant to the Allen analysis. At a general level, Hickey was
required to drive to California for work. It does not matter
whether JBS specifically required him to drive for an extended
period of time without breaks or to keep his left leg still.
B. Step Two: Unusual or Extraordinary Activity
¶38 Having identified the totality of the circumstances
surrounding the employment activity that precipitated Hickey‘s
injuries, we turn to the court of appeals‘ determination that this
activity was not unusual under step two of the Allen test. We
disagree with the court of appeals and conclude that Hickey‘s
long-haul drive in a commercial diesel truck is distinct from
typical nonemployment activities in everyday life.
¶39 Under step two of the Allen test, we must ―compare the
activity that precipitated the employee‘s injury with ‗the usual
wear and tear and exertions of nonemployment life.‘‖ Murray,
2013 UT 38, ¶ 48 (quoting Allen, 729 P.2d at 26). We apply an
objective standard, based on activities ―the average person
typically undertakes in nonemployment life,‖ Allen, 729 P.2d at
28, rather than looking to ―the nonemployment life of the
particular worker,‖ id. at 26. An activity is unusual under the test
if the exertion it requires or its impact on the body is different
from the ―typical nonemployment activities . . . generally expected
of people in today‘s society.‖ Id. Examples of employment
activities that Utah courts have considered unusual and
extraordinary include those that involve ―jumping, lifting great
weight, or repetition.‖ Murray, 2013 UT 38, ¶ 51. In contrast, the
Allen court named examples of typical exertions performed in
ordinary life, including taking a trash can out to the curb and
―climbing the stairs in buildings.‖ 729 P.2d at 26.
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¶40 Applying this objective standard, the court of appeals
concluded that Hickey‘s drive was neither unusual nor
extraordinary because the court ―perceive[d] no meaningful
distinction between sitting for a long time in a truck cab and
sitting for a long time in a passenger car, or sitting for a long time
in an airplane seat, or even sitting for a long time on a couch in
front of a television screen.‖ JBS Carriers, 2021 UT App 44, ¶ 24.
We must disagree for two reasons.
¶41 First, the Allen analysis requires a comparison of the
workplace activity with nonwork activity that is typical of
everyday life. The question is not whether some corollary can be
identified in nonwork life that some people may do occasionally,
but whether the employment activity is like the usual and
ordinary activities that people do in everyday life. Unlike taking
out the trash or climbing stairs, driving a commercial truck for
nine hours in one day with only one break—and with a stationary
left leg—is not typical of everyday nonwork life. And while some
people may watch television for nine hours straight without
moving, take nine-hour international flights and leave their seat
only once, or go on long road trips, we cannot describe these as
typical of the usual, ordinary activities people do day to day.
¶42 Fundamentally, if we define usual nonemployment
activities so broadly as to include international flights and binge-
watching television, we may distort the Allen test so that virtually
any work activity has some equivalent in nonemployment life. For
example, we have concluded that ―jumping, lifting great weight,
[and] repetition,‖ Murray, 2013 UT 38, ¶ 51, are unusual
workplace activities. But some people may sometimes do those
things in nonwork life. After all, some people jump out of
airplanes with parachutes, lift 200 pounds at the gym, or run
marathons. But the fact that some people sometimes do these
things does not make them typical of everyday life. In analyzing
whether a particular workplace activity is ―unusual‖ or
―extraordinary,‖ the benchmark for usualness or ordinariness is
activity that is typical of everyday nonwork life—like taking out a
trash can, walking up stairs, Allen, 729 P.2d at 26, or regaining
one‘s balance during a bumpy bus ride, Murray, 2013 UT 38, ¶ 53.
¶43 Second, the nonemployment activities referenced by the
court of appeals differ from professional long-haul truck driving
in some key respects. Hickey was not just sitting passively for
nine hours. He was responsible for operating a commercial 18-
wheel diesel truck on the highway from Utah to California. So he
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had to remain focused on the road, seated in the driver‘s seat, and
in a relatively stationary position with his head forward and arms
on the steering wheel. His left leg was motionless, and in general
he had ―very little‖ room to move his feet. He had ―limited
opportunity . . . to stretch, change position, or otherwise move
about.‖ And the Board emphasized that ―driving a truck is more
complex and demanding than operating or traveling in a personal
automobile.‖ If Hickey‘s job was more taxing than driving a
personal car, it was certainly more demanding than sitting on a
sofa watching television or sitting on an airplane as a passenger.
¶44 But while we ultimately disagree with the court of
appeals‘ determination that Hickey‘s drive to California was not
an unusual activity under Allen, we recognize the challenge the
Labor Commission and courts face when asked to assess whether
an employment activity is typical, usual, or ordinary. The varying
conclusions of the ALJ, the Board, the court of appeals, and now
our court on this question demonstrate this difficulty. Perceptions
of what is ―usual‖ or ―unusual‖ can vary. And we do not dispute
the dissent‘s observation that there is no precise metric for
determining what is typical or usual. Infra ¶¶ 52–53.
¶45 It is possible that, as the dissent posits, there is a better
way to determine whether a claimant‘s injury arose ―out of and in
the course of the employee‘s employment,‖ UTAH CODE
§ 34A-2-401(1), when the claimant has a preexisting condition. But
neither party has asked us to overturn Allen or briefed the Eldridge
factors for overturning precedent. See Eldridge v. Johndrow,
2015 UT 21, ¶ 22, 345 P.3d 553 (identifying ―(1) the persuasiveness
of the authority and reasoning on which the precedent was
originally based, and (2) how firmly the precedent has become
established in the law since it was handed down‖ as two factors to
consider before overturning precedent). And we have no briefing
before us on the merits of an alternative to the Allen test. So while
the dissent makes some valid points, ―[w]e do not overrule our
precedents ‗lightly.‘‖ Taylorsville City v. Mitchell, 2020 UT 26, ¶ 30,
466 P.3d 148 (quoting Eldridge, 2015 UT 21, ¶ 21). And we
generally do not return to the drawing board ―unless and until a
party meets its burden of establishing that our prior case law is
unworthy of stare decisis respect.‖ Waite v. Utah Lab. Comm’n,
2017 UT 86, ¶ 88, 416 P.3d 635 (Pearce, J., concurring).
¶46 To provide additional guidance in this area within the
confines of our precedent, we emphasize that the question is not
whether some corollary to the employment activity can be located
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JBS CARRIERS v. HICKEY
Opinion of the Court
that some people may do outside of work. The question is
whether the employment activity is comparable to the usual and
ordinary activities that are typical of everyday nonwork life.
¶47 Because we have determined that driving a commercial
diesel truck for approximately nine hours with only one break
and a stationary left leg is not like the ordinary activities people
do in everyday life, we reverse the court of appeals‘ decision.
Hickey has successfully shown his employment activities were the
legal cause of his injuries under Allen. Accordingly, he has
prevailed on his workers‘ compensation claim, regardless of
whether his super obesity was a preexisting condition.
¶48 For this reason, we need not determine whether Hickey‘s
super obesity functioned as a preexisting condition here. And we
do not address whether the court of appeals erred in opining on
this question, which was addressed by the ALJ but not the Board.
Accordingly, we vacate this portion of the court of appeals‘
opinion.
CONCLUSION
¶49 When a workers‘ compensation claimant has a
preexisting condition, the claimant must show that the
employment activity that precipitated the injury was the medical
cause and the legal cause of those injuries. To determine legal
causation, the initial step is to consider the totality of the
employment-related circumstances that precipitated the injury—
without regard to whether the manner in which the claimant
conducted the work was specifically required by the employer.
The next step is to determine whether the employment activity is
unusual or extraordinary when compared with the typical,
ordinary activities that people do in everyday, nonwork life.
Because we conclude that Hickey‘s drive to California was an
unusual activity, he has shown legal causation. We therefore
reverse the court of appeals‘ opinion and reinstate the decision of
the Board.
ASSOCIATE CHIEF JUSTICE LEE, dissenting:
¶50 Our case law holds that a workers‘ compensation
claimant who has a preexisting condition must show that his
―employment contributed something substantial to increase the
risk he already faced in everyday life because of his condition.‖
Allen v. Indus. Comm’n, 729 P.2d 15, 25 (Utah 1986). This is our
standard of legal causation. It requires (1) an identification of ―the
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LEE, A.C.J., dissenting
employment-related activity that precipitated the employee[‘s]
injury,‖ and (2) a determination as to ―whether this activity is
objectively unusual or extraordinary‖ compared to a baseline of
what is ―typical‖ or ―usual‖ in nonemployment life. Murray v.
Utah Lab. Comm’n, 2013 UT 38, ¶ 48, 308 P.3d 461 (citations
omitted); see also Allen, 729 P.2d at 26 (speaking of ―typical
nonemployment activities . . . generally expected of people in
today‘s society‖); id. at 28 (stating that the claimant must show
that his exertion ―exceeded [what] the average person typically
undertakes in nonemployment life‖).
¶51 The baseline is framed in purportedly objective terms. It
is defined not by an individual worker‘s subjective activity in his
actual ―nonemployment life‖ but by what is ―typical,‖ ―usual,‖ or
―generally expected‖ of ―average‖ people ―in today‘s society.‖ Id.
at 26, 28. But these seemingly objective terms lack clear meaning
in our case law. And unless and until we fill in the missing
substance we won‘t really have an objective standard. We will
have a test that carries an air of objectivity but leaves case-by-case
disposition up to the subjective inclinations of individual
factfinders. See supra ¶ 44 (acknowledging that the court has not
established a ―precise metric for determining what is typical or
usual‖ and conceding that this creates a ―challenge‖—opening the
door to ―[t]he varying conclusions of the ALJ, the Board, the court
of appeals, and now our court‖ in this case).
¶52 The closest we have come to giving content to the
standard is in the lists set forth in our cases—of nonemployment
activities we deem to fall either within or beyond the bounds of
what is typical. Allen says that ―typical‖ nonemployment activities
include ―climbing the stairs in buildings‖ and taking a trash can
out to the curb. 729 P.2d at 26. And Murray states that ―jumping,‖
―lifting great weight,‖ and ―repetition‖ of such activity are
atypical. 2013 UT 38, ¶ 51. But our cases identify no predicate for
our formulation of these lists, and they provide no guidance as to
how the lists might be extended in future cases. And we have
sidestepped the devil that is lurking in the details of our lists.
¶53 A key point of imprecision is in the lack of a standard for
judging typicality or usualness. How is the average person
defined? How many members of the general public must engage
in a given activity for it to count as typical? How frequently must
they engage in it for it to qualify as usual? And how is a factfinder
supposed to judge whether a given activity satisfies the
standard—to measure the extent or frequency of a given activity?
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LEE, A.C.J., dissenting
We have nowhere acknowledged the difficulty posed by these
unanswered questions. And we have come nowhere close to
answering them.
¶54 The Allen lists are worse than opaque. They are also
misleading. We have never identified the degree of stair-climbing
or trash-can-carrying that is typical or usual. And a given job
could easily require more stair-climbing or trash-can-carrying (or
similar acts) than most people engage in with any regularity. A
parallel problem appears in our lists of supposedly unusual
activities. Surely there are a lot of people who engage in a degree
of jumping and heavy lifting in their day-to-day nonemployment
activities. For these reasons, the seemingly objective lists set forth
in Allen and Murray are not only not objective; they do not align
with the theory of our law of legal causation.1
¶55 All of these problems are on display in the case before us
here. The majority seeks to address them in its response to the
court of appeals‘ extension of our lists in Allen and Murray—the
court of appeals‘ addition of ―sitting for a long time in an airplane
seat‖ and ―sitting for a long time on a couch in front of a
television screen.‖ See supra ¶ 16. But the majority‘s response to
the additions to our lists kicks the can down the road on the
above-noted points of imprecision.
¶56 The majority suggests that the court of appeals‘ additions
to our lists are problematic because they do not describe acts that
are ―typical of the usual, ordinary activities people do day-to-
day.‖ Supra ¶ 41. And the majority attempts to address some
points of imprecision in our case law by ―emphasiz[ing]‖ that ―the
__________________________________________________________
1 These concerns are not entirely new. Some of them were
raised decades ago by Associate Chief Justice Stewart. See Allen v.
Indus. Comm’n, 729 P.2d 15, 30 (Utah 1986) (Stewart, A.C.J.,
dissenting) (stating that the dissent was ―unable to understand
how an administrative law judge, the [Labor] Commission, or an
appellate court is supposed to determine what ‗typical
nonemployment activities‘ are ‗in today‘s society‘‖; questioning
whether the standard ―mean[s] what a typical sixty-five-year-old
does or a typical twenty-one-year-old?‖; objecting to the
formulation of lists of activities that ―reflect only what some
people may do from time to time― ―[i]nstead of defining a
meaningful standard‖; and concluding that our law ―has not set
forth a workable standard‖).
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LEE, A.C.J., dissenting
question is not‖ what ―some people may do occasionally‖
―outside of work.‖ Supra ¶¶ 41, 46. But the court nowhere
identifies a standard or quantum of typicality or usualness, or a
basis for concluding that carrying a trash can to the curb is a
―typical‖ ―day-to-day‖ event for an ―average‖ person but tv
binge-watching is not.
¶57 Today‘s majority begs all the same questions that Allen
did—as to how the ―average‖ person is to be defined; how many
members of the general public must engage in an activity for it to
count as ―typical‖; how frequently they must engage in it for it to
qualify as ―day-to-day,‖ ―everyday,‖ or ―usual‖;2 and how the
factfinder is supposed to measure the commonality or frequency
of these sorts of events. (My sample size is admittedly small, but
the members of my household seem to engage in more binge-
watching than trash-can-carrying.)
¶58 I respectfully dissent from the extension of an ―objective‖
standard that lacks these (and other important) hallmarks of
objectivity. And I see no way to reframe Allen in terms that are
both truly objective and practically workable.
¶59 A truly objective inquiry may ultimately prove
unattainable in this context, at least in the broad run of cases. 3 I
__________________________________________________________
2 The majority refers both to ―day-to-day‖ activities and uses
the Allen language of ―everyday‖ activities. Supra ¶¶ 38, 41–42, 46;
Allen, 729 P.2d at 25 (asking whether ―the employment
contributed something substantial to increase the risk‖ that a
worker ―already faced in everyday life because of his condition‖);
see also Murray v. Utah Lab. Comm’n, 2013 UT 38, ¶ 53, 308 P.3d 461
(holding that the claimant‘s exertion was not more than
―generally expected . . . in everyday life‖).
3 See Duvall v. Charles Connell Roofing, 564 A.2d 1132, 1135–37
(Del. 1989) (rejecting the objective standard proposed in the
Larson treatise on workers‘ compensation on the ground that
―this rule . . . raises several immediate problems,‖ including:
―Who is the average person in ‗normal‘ non-employment life[,]
[and] how is the comparable level of activity in ‗normal‘ non-
employment life to be determined, and by whom? How does one
compare the level of exertion in moving or lifting heavy objects on
the job versus strenuous, but ‗normal‘ non-employment
activities?‖).
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LEE, A.C.J., dissenting
see no ready model for refining the objective standard. The case
law in the minority of states that have adopted a ―typical
nonemployment activities‖ standard suffers from the same
deficiencies found in our law.4 And even the treatise that
formulated the objective standard relies on lists of activities—
without any basis for connecting the list to an objective, workable
standard. LARSON‘S WORKERS‘ COMPENSATION LAW § 46.03;
id. § 46.03[2] (asserting that ―the usual wear and tear of
life . . . certainly includes lifting objects weighing 20 pounds, such
as bags of golf clubs, minnow pails, and step ladders‖ but that
―people generally do not lift 200-pound weights as a part of
nonemployment life‖).
¶60 Even if we established a quantum of extensiveness or
frequency for an activity to qualify as ―typical‖ or ―unusual,‖ that
would still leave the task of identifying a mechanism for applying
these standards to the activities proposed for the baseline in an
individual case. That could lead to an extensive trial within a
trial—to allow the parties to put on expert or fact testimony as to
the extensiveness and frequency of a given set of purportedly
comparable activities, and to engage in a debate over whether and
to what extent the baseline activities are comparable to the
requirements of a claimant‘s job. And these practical problems
may be enough to bring us back to the drawing board on the
standard for legal causation.
¶61 The drawing board could lead us to revisit the Allen
court‘s adoption of an objective standard. It would be helpful to
have briefing on a possible basis for overruling Allen and
replacing it with a subjective test.5
__________________________________________________________
4 See, e.g., Leitz v. Roberts Dairy, 465 N.W.2d 601, 605–07 (Neb.
1991) (concluding without further development of the standard
that the claimant‘s exertion while moving ice cream carts was
―greater than that experienced during . . . ordinary
nonemployment life‖); see also id. at 608 (Shanahan, J., concurring)
(expressing the view that ―[t]he majority has declined to explain
or illustrate application of the [objective] standard‖—and
describing the standard as ―not only impractical but unrealistic
and an invitation for conjecture and speculation‖).
5 The parties, admittedly, have not ―asked us to overturn
Allen,‖ or briefed the standard for overruling it under our doctrine
of stare decisis. Supra ¶ 45. But they have asked us to apply the
(continued . . .)
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LEE, A.C.J., dissenting
¶62 Such briefing could highlight the imprecision in and
unworkability of our objective test as it now stands. And it could
develop a point made in the dissenting opinion in Allen—the
notion that the operative text of the statute seems to cut against an
objective standard. See Allen, 729 P.2d at 29 (Stewart, A.C.J.,
dissenting). The statute, after all, provides that an employee
―injured . . . by accident arising out of and in the course of the
employee‘s employment‖ is entitled to compensation unless the
injury was ―purposely self-inflicted.‖ UTAH CODE § 34A-2-401(1).
And it is hard to see how the ―typical‖ or ―usual‖ activity of the
general public—or ―average‖ people—should figure into this
requirement of causation.
¶63 An individual worker‘s subjective nonemployment
activity seems a better fit.6 Under a subjective standard, an injury
may not arise ―out of and in the course of the employee‘s
Allen standard. And as the court of last resort in this state, it is our
job to articulate that standard in clear, workable terms—terms
that provide some promise that the cases in this field will be
decided in accordance with the rule of law, and not on the basis of
the case-by-case preferences of judicial officers. See McDonald v.
Fid. & Deposit Co. of Md., 2020 UT 11, ¶ 33, 462 P.3d 343 (―It is our
province and duty to say what the law is. In fulfilling that duty
we are not limited to a choice between the parties‘ competing
positions. We must get the law right, even if in so doing we
establish a standard that differs from either of the approaches
presented in the briefing on appeal.‖).
Perhaps we would benefit from further briefing in order to
accomplish that task. If so, we should ask for it. See Widdison v.
State, 2021 UT 12, ¶ 120 n.32, 489 P.3d 158 (Lee, A.C.J., concurring)
(recognizing this court‘s ―prerogative of seeking supplemental
briefing where we lack an express request and [would] find
adversary briefing helpful‖ (citations omitted)). And if we decide
not to seek it, we are ―in no position to blame the decision not to
reconsider [relevant precedent] on a lack of briefing‖ that is the
result of ―our own decision not to order supplemental briefing.‖
Blanke v. Utah Bd. of Pardons & Parole, 2020 UT 39, ¶¶ 83–84, 86,
467 P.3d 850 (Lee, A.C.J., concurring).
6 See Leitz, 465 N.W.2d at 610 (Shanahan, J., concurring)
(criticizing the objective standard and advocating for ―a more
practical and realistic‖ comparison with ―the employee‘s usual
nonemployment exertion‖).
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LEE, A.C.J., dissenting
employment‖ if the worker suffers an injury at work while
performing an activity he usually performs outside of work. See
UTAH CODE § 34A-2-401(1). The worker‘s subjective, day-to-day
activities could thus be the relevant baseline under the statute.
And such a baseline might elide the range of problems that are
confounding our law in this area.
¶64 Some day this court will have occasion to consider these
questions. When it does, I suspect it will reject the opaque,
―objective‖ test set forth in Allen and replace it with a subjective
standard that seems to better accord with the controlling text of
the Workers‘ Compensation Act. I look forward to that day—from
a new perch as an observer rather than a member of this court.
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