Nyrehn v. Industrial Com'n of Utah

• Decision Date: 25 October 1990
• Docket Number: No. 900010-CA,900010-CA
• Citation: 800 P.2d 330
• Parties: Kathleen NYREHN, Petitioner, v. INDUSTRIAL COMMISSION OF UTAH, Employers' Reinsurance Fund, Fred Meyer Stores and/or Liberty Mutual Insurance, Respondents.
• Court: Utah Court of Appeals

Page 330

800 P.2d 330

Kathleen NYREHN, Petitioner, v. INDUSTRIAL COMMISSION OF UTAH, Employers' Reinsurance Fund Fred Meyer Stores and/or Liberty Mutual Insurance Respondents.

No. 900010-CA.

Court of Appeals of Utah.

Oct. 25, 1990.

William W. Downes, Jr., David Eckersley (argued), Salt Lake City, for petitioner.

Michael E. Dyer (argued), Brad C. Betebenner, Richards, Brandt, Miller & Nelson, Salt Lake City, for Fred Meyer Stores.

Erie V. Boorman, Administrator (argued), Salt Lake City, for Employers Reinsurance Fund.

Before BENCH, GARFF and CONDER ¹, JJ.

OPINION

BENCH, Judge:

Kathleen Nyrehn petitions this court for review of the Industrial Commission's denial of workers' compensation benefits. We reverse.

Nyrehn worked as a stock room clerk for Fred Meyer Stores. Her duties included pricing and sorting merchandise contained in tubs which were approximately 2 1/2 feet wide, 2 1/2 feet long, and 1 1/2 to 2 feet tall. The tubs weighed between fifteen and forty pounds each, depending on the contents, and were stacked upon each other. Nyrehn would lift and carry the tubs to and from a sorting area approximately thirty to thirty-six times a day. In addition to lifting the tubs, Nyrehn was involved in constant bending and stooping to sort merchandise into different tubs. On January 23, 1985, at approximately 11:00 a.m., Nyrehn felt a gradual onset of pain in her lower back while performing her duties at work. Despite the pain she continued to work. The pain worsened until she finally had to leave work early at approximately 4:00 p.m. After three back operations, Nyrehn's pain persisted and she was still unable to work. She therefore sought permanent disability benefits.

After a hearing, an Administrative Law Judge (A.L.J.) made the following relevant findings of fact: (1) Nyrehn's pain of January 23, 1985 was not the result of a certain incident or activity, but rather the result of "two and [a] half months of lifting tubs of merchandise 30 to 36 times a day;" (2) Nyrehn had an asymptomatic preexisting condition, spondylolysis (disintegration or dissolution of a vertebra); and (3) 75% of Nyrehn's total permanent impairment existing at examination was "caused by the industrial accident of January 23, 1985," and 25% was due to "preexisting incapacity of spondylolysis."

The A.L.J. also made the following relevant conclusions of law: (1) Nyrehn injured her lower back "by accident" in that her injury was neither planned nor foreseen; (2) there was a direct medical causal relationship between the industrial accident and Nyrehn's back problems; (3) due to her preexisting condition, Nyrehn was required to prove legal causation under Allen v. Industrial Commission, 729 P.2d 15 (Utah 1986); and (4) Nyrehn's job duties of lifting tubs of merchandise weighing between fifteen and forty pounds did not amount to unusual or extraordinary exertion in excess of the normally expected level of nonemployment activity for men and women in the latter half of the twentieth century as required in Allen. ²

Despite his conclusion that Nyrehn failed to satisfy the Allen test, the A.L.J. awarded Nyrehn permanent total disability benefits. He refused to apply Allen because he felt that the test was at odds with other Utah Supreme Court cases indicating that handicapped workers should not be placed in a hardship in receiving compensation benefits. He also indicated that he believed the Allen test to be unconstitutional because it set a different standard for such handicapped workers.

Fred Meyer Stores and Liberty Mutual Insurance (referred to collectively as Fred Meyer) filed a motion with the Industrial Commission to review the A.L.J.'s award. On review, the Commission adopted the factual findings of the A.L.J. and his conclusion that Nyrehn failed to prove legal causation as required under Allen. The Commission then reversed the A.L.J.'s award of benefits, indicating that despite the A.L.J.'s concerns over the constitutionality of the Allen test, the Commission was required to apply the test. The Commission concluded that inasmuch as Nyrehn failed to satisfy the Allen test she was not entitled to benefits. Nyrehn then petitioned this court to review the Industrial Commission's order.

WAIVER OF APPEAL

Fred Meyer argues that Nyrehn has waived her right to challenge the A.L.J.'s finding that she did not prove legal causation because she did not file her own motion for review of that finding with the Commission. ³ Fred Meyer erroneously relies on Pease v. Industrial Commission, 694 P.2d 613 (Utah 1984). In Pease, the Utah Supreme Court interpreted the following provision: "(1) Any party in interest who is dissatisfied with the order entered by an administrative law judge or the commission may file a motion for review of such order." Utah Code Ann. § 35-1-82.53(1) (Supp.1983) (emphasis added). The supreme court concluded that when an applicant files for review under this section, he must raise all possible issues or the issues not raised would be considered waived. Id. at 616. There is no indication in Pease that a prevailing party has an affirmative duty to seek review from faulty findings. Nor do we perceive any such duty in the language of the statute which is clearly permissive.

Although the conclusion of the A.L.J. regarding legal causation may have been faulty, any such error was rendered harmless to Nyrehn by the subsequent award of benefits. If Fred Meyer had not filed for review, she would have had her benefits. Nyrehn simply did not have any reason to appeal until the Commission denied her benefits. Cf. Halladay v. Cluff, 739 P.2d 643, 645 (Utah Ct.App.1987) ("Cross-appeals are properly limited to grievances a party has with the judgment as it was entered--not grievances it might acquire depending on the outcome of the appeal."). In petitioning this court to review the denial of benefits, Nyrehn is seeking review of the Commission's conclusion that she did not prove legal causation. She is not seeking review of the A.L.J.'s conclusion. The issue of whether Nyrehn proved legal causation is therefore properly before us.

STANDARD OF REVIEW

Inasmuch as these proceedings were commenced prior to January 1, 1988, the effective date of the Utah Administrative Procedure Act (UAPA), we look to the prior case law to determine the proper standard of review. ⁴

As to findings of fact, our review is deferential. "[T]he reviewing court's inquiry is whether the Commission's findings are 'arbitrary or capricious,' or 'wholly without cause' or contrary to the 'one [inevitable] conclusion from the evidence' or without 'any substantial evidence' to support them. Only then should the Commission's findings be displaced." Kaiser Steel Corp. v. Monfredi, 631 P.2d 888, 890 (Utah 1981).

As to the Commission's conclusion that Nyrehn's work-related exertion did not satisfy the Allen test, our review is more searching:

The question of whether the employment activities of a given employee are sufficient to satisfy the legal standard of unusual or extraordinary effort involves two steps. First the agency must determine as a matter of fact exactly what were the employment-related activities of the injured employee. Second, the agency must decide whether those activities amounted to unusual or extraordinary exertion. This second determination is a mixed question of law and fact.

Price River Coal Co. v. Indus. Comm'n, 731 P.2d 1079, 1082 (Utah 1986).

Our standard of review of mixed questions of law and fact is an intermediate review for reasonableness and rationality. "The degree of deference extended to the decisions of the Commission on these intermediate types of issues has been given various expressions, but all are variations of the idea that the Commission's decisions must fall within the limits of reasonableness or rationality." Sisco Hilte v. Indus. Comm'n, 766 P.2d 1089, 1091 (Utah Ct.App.1988) (quoting Utah Dept. of Admin. Servs. v. Public Serv. Comm'n, 658 P.2d 601, 610 (Utah 1983)).

"[R]easonableness must be determined with reference to the specific terms of the underlying legislation, interpreted in light of its evident purpose as revealed in the legislative history and in light of the public policy sought to be served." This standard appears to give us some flexibility in reviewing the otherwise objective standard that must be applied by the Commission.

Smith & Edwards Co. v. Indus. Comm'n, 770 P.2d 1016, 1018 n. 2 (Utah Ct.App.1989) (quoting Utah Dep't of Admin. Servs., 658 P.2d at 611). ⁵

"Furthermore, to facilitate the purposes of the legislation, the Workers' Compensation Act is to be liberally construed and any doubt as to compensation is to be resolved in favor of the applicant." USX Corp. v. Indus. Comm'n, 781 P.2d 883, 886 (Utah Ct.App.1989); Kaiser Steel Corp., 631 P.2d at 892; McPhie v. Indus. Comm'n, 567 P.2d 153, 155 (Utah 1977).

Guided by these standards we must determine whether there was sufficient evidence to warrant application of the higher Allen test for legal causation and whether the Commission's conclusion that Nyrehn failed to prove legal causation was a reasonable and rational conclusion.

RECOVERY OF BENEFITS

In order to recover workers' compensation benefits, an employee must prove that she was injured "by accident arising out of or in the course of [her] employment." Utah Code Ann. § 35-1-45 (1988). "This statutory language creates two prerequisites for a finding of 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." Allen, 729 P.2d at 18. The Utah Supreme Court held in Allen that a claimant must supply proof of both "legal" and "medical" causation. "Under the legal test, the law must define what kind of exertion satisfies the test of 'arising out of the employment' ... [then] the doctors must say whether the exertion (having been held...