Jacobsen v. Labor Commission, et al

jacobsen.op

IN THE UTAH COURT OF APPEALS

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Jessica D. Jacobsen,

Petitioner,

v.

Labor Commission, Salt Lake Hilton, and United Pacific Reliance Insurance,

Respondents.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 981284-CA

F I L E D

(March 11, 1999)

1999 UT App 073

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Original Proceeding in this Court

Attorneys: M. David Eckersley, Salt Lake City for Petitioner

Stuart L. Poelman and Dori K. Petersen, Salt Lake City, for Respondents Salt Lake Hilton and United Pacific Reliance Insurance

Alan Hennebold, Salt Lake City, for Respondent Labor

Commission

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Before Judges Greenwood, Davis, and Jackson.

DAVIS, Judge:

This case is before this court for a second time. See Hilton Hotel v. Industrial Comm'n, 897 P.2d 352 (Utah Ct. App. 1995). Jessica D. Jacobsen petitions this court for review of the Utah Labor Commission's (Commission) ruling that her employment activity was not an unusual or extraordinary exertion, and its resulting order reversing the administrative law judge's award of workers' compensation benefits. We affirm.

Whether an employment activity is "sufficient to satisfy the legal standard of unusual or extraordinary effort so as to constitute a compensable industrial accident" is a "mixed question of law and fact." Stouffer Foods Corp. v. Industrial Comm'n, 801 P.2d 179, 181 (Utah Ct. App. 1990). Because the statute governing compensation for work-related injuries "'does not expressly or impliedly grant discretion to the [Labor] Commission in construing the specific language of the statute,'

[w]e . . . review for correctness the [Commission's] application of the statute to these facts."(1) Stokes v. Board of Review, 832 P.2d 56, 58-59 (Utah Ct. App. 1992) (quoting Cross v. Board of Review, 824 P.2d 1202, 1204 (Utah Ct. App. 1991)); accord Drake v. Industrial Comm'n, 939 P.2d 177, 181 (Utah 1997); see Utah Code Ann. § 34A-2-401(1) (1997); and see Smallwood v. Board of Review, 841 P.2d 716, 719 (Utah Ct. App. 1992) (stating this court reviews a legal causation ruling by "review[ing] the agency's record to determine whether the agency erroneously interpreted or applied the law so as to substantially prejudice" the injured employee). Because the issue of whether an employment activity amounts to an unusual or extraordinary exertion is highly fact-sensitive, we "'convey[] a measure of discretion to [the Commission] when applying that standard to a given set of facts.'" Drake, 939 P.2d at 182 (quoting State v. Pena, 869 P.2d 932, 939 (Utah 1994)).

Here, the Commission ruled that petitioner's exertion at work which precipitated her injury was not an unusual or extraordinary exertion meeting the legal causation prong of the test established in Allen v. Industrial Comm'n, 729 P.2d 15 (Utah 1986). Petitioner's claim for workers' compensation benefits was therefore denied. While petitioner does not necessarily disagree with the Commission's ruling, she argues that because her "injurious exertion is subject to fair debate as to whether it was unusual or extraordinary, the Commission must, consistent with the previously enunciated law of this State, resolve that issue in favor of the injured worker." We disagree. "'[W]here inconsistent inferences can be drawn from the same evidence, it is for the Board to draw the inferences.'" V-1 Oil Co. v. Division of Envtl. Response and Remediation, 962 P.2d 93, 94 (Utah Ct. App. 1998) (quoting Grace Drilling Co. v. Board of Review, 776 P.2d 63, 68 (Utah Ct. App. 1989)). Additionally, our supreme court recognized that "[t]he concept of 'unusual or extraordinary' exertion [must be] fleshed out over time. Of necessity, the process of pouring specific content into that concept will rely heavily upon the Commission's expertise in and familiarity with the work environment." Price River Coal Co. v. Industrial Comm'n, 731 P.2d 1079, 1084 (Utah 1986). If this court were to compel the Commission to hold in favor of the employee each time there is a "fair debate" whether an exertion is unusual or extraordinary, we would defeat the Commission's delegated role in the administrative review process.

Because we agree with the Commission that petitioner's exertion of lifting the tray is similar to "the kinds of activities that are commonly experienced in modern nonindustrial life," we hold that the Commission correctly interpreted and applied the Allen test of legal causation. See Smallwood, 841 P.2d at 720. We therefore affirm the Commission's order denying petitioner workers' compensation benefits.

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James Z. Davis, Judge

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WE CONCUR:

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Pamela T. Greenwood,

Associate Presiding Judge

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Norman H. Jackson, Judge

1. In 1994, the Legislature granted the Commission broad discretion to "determine the facts and apply the law" governing workers' compensation. See Act of Industrial Commission Authority, ch. 207, § 1, 1994 Utah Laws 972; codified at Utah Code Ann. § 35-1-16 (1994) (currently codified at Utah Code Ann. § 34A-1-301 (1997)). This explicit grant of discretion created a different standard of review. See Johnson Bros. Constr. v. Labor Comm'n, 967 P.2d 1258, 1259 (Utah Ct. App. 1998). However, because petitioner's case arose before the effective date of this statutory change, we do not apply the current standard of review. See Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 675 (Utah 1997) ("[I]n workers' compensation claims, the law existing at the time of the injury applies in relation to that injury.").