Allen v. Industrial Com'n, 20026

Citation729 P.2d 15
Decision Date14 November 1986
Docket NumberNo. 20026,20026
PartiesRobert A. ALLEN, Plaintiff, v. INDUSTRIAL COMMISSION, Board of Review, Jer Ken, Inc., State Insurance Fund and Second Injury Fund, Defendants.
CourtSupreme Court of Utah

Michael E. Bulson, Ogden, for plaintiff.

Gilbert Martinez, Salt Lake City, for Second Injury.

Fred R. Silvester, James R. Black, Salt Lake City, for State Ins. Fund.

DURHAM, Justice:

Claimant Robert A. Allen seeks a review from the Industrial Commission's denial of his motion for review of an administrative law judge order denying him compensation for a back injury sustained at work. For the reasons stated below, we reverse and remand.

On November 23, 1982, the claimant, aged 36, was employed as night manager of Kent's Foods. The claimant testified to the following version of events at a hearing before an administrative law judge. The claimant was working in a confined cooler in the store stacking crates, containing four to six gallons 1 of milk, from the floor onto a cooler shelf. While lifting one crate to about chest level, he suddenly felt a sharp pain in his lower back. He immediately set down the crate and asked another employee to continue stocking the shelves. The claimant completed the one-half hour remaining in his shift doing desk work. That night the pain increased, and by morning his left leg felt numb. Four or five days later, he saw Dr. Ivan Wright about his back problem. Initial doctor visits during December were followed through with the prescribed treatment of bed rest and medication. A myelogram finally revealed a herniated disc, and the claimant spent ten days in traction in the hospital in early January. He did not return to work.

The claimant also testified he had a history of prior back injuries, including a fall from a telephone pole at age fourteen which required him to wear a back brace for several months, a back injury in 1977 while lifting sand bags for the Logan School District, and another fall while working for that employer when he slipped on a slick concrete ramp and broke his coccyx. None of the prior injuries resulted in prolonged absences from work.

The testimony from other sources varied slightly from the report given by the claimant. The employer's report of injury describes the accident as "picking up freight and stocking it on shelves, lifting boxes and stacking them from truck." No specific event was mentioned in the employer's report. The medical records of treating physicians described the claimant's previous injuries, but omitted any reference to a specific incident in the cooler. Dr. Hannan, who examined the claimant on December 31, 1982, wrote, "He does not remember any distinct episode as having precipitated his current problem, however." And in a letter from Dr. Bryner to Dr. Wright dated January 13, 1983, the claimant's history was related as follows: "About six weeks ago, however, he was lifting material at work, and recalls no specific injury or stress but developed discomfort in his left groin area which ultimately extended into his big toe."

The administrative law judge found that the claimant's injury to his back on November 23, 1982, was not "an injury by accident arising out of or in the course of employment." It is apparent that the administrative law judge, using a specific episode analysis, concluded there was no "accident" because there was no identifiable event that caused the injury and because lifting the crates of milk was a routine and commonplace exertion expected of the job. The administrative law judge analogized the facts of this case to Farmer's Grain Cooperative v. Mason, 606 P.2d 237 (Utah 1980), where a gradually developed back injury was held to be not compensable where the condition worsened without the intervention of any external occurrence or trauma.

The sole issue on appeal is whether the claimant, who had suffered preexisting back problems and was injured as the result of an exertion usual and typical for his job, was injured "by accident arising out of or in the course of employment" as required by the Workers' Compensation Act, U.C.A., 1953, § 35-1-45 (Supp.1986). That Act, in pertinent part, provides:

Every employee ... who is injured ... by accident arising out of or in the course of his employment ... shall be paid compensation for loss sustained on account of the injury....

Id. This statute creates two prerequisites for a finding of a compensable injury. First, the injury must be "by accident." Second, the language "arising out of or in the course of employment" requires that there be a causal connection between the injury and the employment. See Pittsburgh Testing Laboratory v. Keller, 657 P.2d 1367, 1370 (Utah 1983). Prior decisions by this Court have often failed to distinguish the analysis of the accident question from the discussion of causation elements. 2 As a result, this Court and the Commission are faced with confusing and often inconsistent precedent. For this reason we now undertake a fresh look at the policy and historical background of the workers' compensation statute in an attempt to provide a clear and workable rule for future application by the Commission.


The term "by accident" is not defined in the workers' compensation statutes. The most frequently referenced authority for the definition of "by accident" is the case of Carling v. Industrial Commission, 16 Utah 2d 260, 399 P.2d 202 (1965), where the term was defined as follows:

[An accident] connotes an unanticipated, unintended occurrence different from what would normally be expected to occur in the usual course of events.... [T]his is not necessarily restricted to some single incident which happened suddenly at one particular time and does not preclude the possibility that due to exertion, stress or other repetitive cause, a climax might be reached in such manner as to properly fall within the definition of an accident as just stated above. However, such an occurrence must be distinguished from gradually developing conditions which are classified as occupational diseases....

Id. at 261-62, 399 P.2d at 203 (citing Jones v. California Packing Corp., 121 Utah 612, 616, 244 P.2d 640, 642 (1952), and Purity Biscuit Co. v. Industrial Commission, 115 Utah 1, 201 P.2d 961 (1949)). Some confusion has developed as to whether "by accident" requires proof of an unusual event. This issue frequently arises when the employee suffers an internal failure 3 brought about by exertions in the workplace. It is clear, however, that our cases have defined "by accident" to include internal failures resulting from both usual and unusual exertions. See Schmidt v. Industrial Commission, 617 P.2d 693, 695 (Utah 1980).

This Court first discussed the term "by accident" in Tintic Milling Co. v. Industrial Commission, 60 Utah 14, 206 P. 278 (1922), where an accident was said to be "something out of the ordinary, unexpected, and definitely located as to time and place." 60 Utah at 22, 206 P. at 281. This definition was used to distinguish injuries which occurred gradually and were covered under statutory provisions for occupational disease. Id. The Court in Tintic Milling also acknowledged that where the claimant suffers an internal failure the "unexpected result" rule of the seminal English case of Fenton v. Thorley, [1903] A.C. 443, 72 L.J.K. 789, 5 W.C.C. 1, is appropriate. The Court in Tintic Milling observed:

"Since the case of Fenton v. Thorley, nothing more is required than that the harm that the plaintiff has sustained shall be unexpected.... It is enough that the causes, themselves known and usual, should produce a result which on a particular occasion is neither designed nor expected. The test as to whether an injury is unexpected, and so, if received on a single occasion, occurs 'by accident,' is that the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing."

60 Utah at 26, 206 P. at 282 (quoting Bohlen, A Problem in The Drafting of Workmen's Compensation Acts, 25 Harv.L.Rev. 328, 340 (1912) (emphasis added)). Accordingly, the Court in Tintic affirmed a finding that the employee, whose previous respiratory problems were aggravated by entering a roasting flue, had suffered a compensable accident.

After Tintic Milling, the Court temporarily rejected the "unexpected result" definition of Fenton v. Thorley in internal failure cases on the ground that the definition of "by accident" required an unusual occurrence or exertion. In Bamberger v. Industrial Commission, 66 Utah 203, 240 P. 1103 (1925), the Court denied compensation to a worker who unexpectedly suffered a heart attack while manually unloading a railroad car of coal on the ground that no overexertion occurred during the work. 66 Utah at 208, 240 P. at 1104. That decision was apparently overruled, however, when the Court embraced the "unexpected result" rule and awarded compensation to an employee who suffered a heart attack after overexertions while routinely cleaning the weirs to a city reservoir. Hammond v. Industrial Commission, 84 Utah 67, 87, 34 P.2d 687, 695 (1934) (Moffat, J., concurring). Hammond was followed in Columbia Steel Co. v. Industrial Commission, 92 Utah 72, 66 P.2d 124 (1937), where a unanimous Court held that the employee, who had suffered a ruptured aorta from riding a caterpillar tractor over rough ground, suffered an injury "by accident" since the result was "an unusual, unforeseen, and unexpected event or occurrence" and definite as to time and place. Id. at 92, 66 P.2d at 134. And, in Thomas D. Dee Memorial Hospital Ass'n. v. Industrial Commission, 104 Utah 61, 138 P.2d 233 (1943), the Court sustained an award of benefits to a claimant who had suffered from heart disease and experienced a heart attack shortly after moving 52 boxes weighing 50 to 100 pounds and 28 sacks of fire clay--work that was unusually heavy and greatly in excess of his ordinary duties. The Court pointed out, in dicta, that the...

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