Olsen v. Ellertson

Utah State Courts - Opinions - Olsen v. Ellertson

IN THE UTAH COURT OF APPEALS

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Scott L. Olsen,

Petitioner,

v.

R. Lee Ellertson, Commissioner of the Labor Commission,

Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020666-CA

F I L E D
(September 5, 2003)

2003 UT App 302

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Original Proceeding in this Court

Attorneys: David K. Smith, Midvale, for Petitioner

Alan Hennebold, Salt Lake City, for Respondent

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Before Judges Jackson, Billings, and Greenwood.

BILLINGS, Associate Presiding Judge:

Scott Olsen seeks review of a Utah Labor Commission (the Commission) order denying Olsen's motion for review and upholding the Administrative Law Judge's (the ALJ) decision denying Olsen workers' compensation benefits. We affirm.

Olsen first argues Boeing's initial, voluntary payment of benefits estopped it from later challenging Olsen's workers' compensation claim. We disagree. "[T]he mere fact that an employer pays benefits initially without contesting liability does not mean it is thereafter, as a matter of law, barred from contesting liability." Olsen v. Indus. Comm'n, 776 P.2d 937, 940 (Utah Ct. App. 1989).(1)

Olsen next claims the Commission applied the wrong test for determining legal causation between Olsen's 1992 injury and his workplace activity. "[W]here the claimant suffers from a preexisting condition which contributes to the injury, an unusual or extraordinary exertion is required to prove legal causation." Allen v. Indus. Comm'n, 729 P.2d 15, 26 (Utah 1986). Conversely, "[w]here there is no preexisting condition," id., or if "the preexisting condition resulted from work-related injuries incurred while working for the same employer," Fred Meyer v. Indus. Comm'n, 800 P.2d 825, 829 (Utah Ct. App. 1990), "a usual or ordinary exertion is sufficient." Allen, 729 P.2d at 26.

Insisting that his preexisting condition was work-related, Olsen argues the lower threshold test applies in his case. However, the Commission's finding that Olsen "failed to establish that his preexisting condition was caused by prior injuries at Boeing" is "supported by substantial evidence based upon the record as a whole." Brown & Root Indus. Serv. v. Indus. Comm'n, 947 P.2d 671, 677 (Utah 1997). Olsen concedes his 1989 back condition "was never reported as industrial . . . [or] ever rated." Olsen did not emphasize the issue before the ALJ, and argues on appeal only that the 1989 injury occurred "during the same time" as his employment with Boeing's predecessor. Further, Olsen "does not point to any medical evidence indicating that his preexisting condition" was connected to his employment. Smallwood v. Indus. Comm'n, 841 P.2d 716, 719 (Utah Ct. App. 1992). Therefore, Olsen's claim fails.

Olsen next argues the Commission and ALJ erroneously failed to find that Olsen's preexisting injury contributed to the 1992 injury. See id. (concluding where ALJ applied higher legal causation test, requirement that ALJ find petitioner's preexisting condition "contributed" to injury was satisfied where findings indicated a "causal connection" between the two). We disagree. The ALJ found it "clear that the injury which [Olsen] suffered as a result of his work activities on February 26, 1992 constituted an aggravation of his pre-existing low back condition."(2) Moreover, the Commission plainly found that "Olsen suffered a preexisting condition that contributed to . . . his 1992 injury," a conclusion "supported by Dr. Smith's statement that 25% of Mr. Olsen's 1992 injury was due to a pre-existing condition."(3) Thus, this claim also fails.

Finally, Olsen argues his "repetitive exertions" the day of the 1992 injury meet the higher legal causation test. "[T]o answer this inquiry, we must first determine what [type of] 'exertion' is at issue . . . ." Nyrehn v. Indus. Comm'n, 800 P.2d 330, 335 (Utah Ct. App. 1990). The Commission correctly notes that at the evidentiary hearing, Olsen claimed "his 1992 injury came on suddenly with a sharp, immediate pain" while drilling one particular hole. Thus, Olsen cannot now insist his injury resulted from the repeated drilling of many holes. See Acosta v. Labor Comm'n, 2002 UT App 67,¶33, 44 P.3d 819 (finding it improper for ALJ to raise "cumulative trauma theory" where petitioner relied on one specific instance of lifting and turning one eight pound infant).

In considering Olsen's act of drilling one hole, the Commission relied on Dr. France's unchallenged conclusion that "the compressive force on the spine" of drilling one hole from Olsen's position "was not much different than the compressive force of picking up a penny or a paper clip off the floor." Therefore, the Commission acted "reasonably and rationally," Acosta, 2002 UT App 67 at ¶34, in concluding "Olsen's exertions at work on February 26, 1992, were not unusual or extraordinary when compared to the typical exertions of modern nonemployment life."

Affirmed.

______________________________

Judith M. Billings,

Associate Presiding Judge

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WE CONCUR:

______________________________

Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge

1. Further, Olsen does not brief any "facts giving rise to estoppel," or cite any documents in the record indicating the Commission previously considered the 1992 accident. Olsen v. Indus. Comm'n, 776 P.2d 937, 941 (Utah Ct. App. 1989) (quotations and citation omitted); cf. State v. Garner, 2002 UT App 234,¶8, 52 P.3d 467 (applying rule 24(a) of the Utah Rules of Appellate Procedure, which requires relevant citations to the record and proper authorities).

2. Technically, Olsen waived his right to challenge the ALJ on this issue by failing to raise it in his motion for review before the Commission. See Smallwood v. Indus. Comm'n, 841 P.2d 716, 718 n.1 (Utah Ct. App. 1992).

3. Olsen does not challenge the sufficiency of these findings.