Ryan B. Frazier | Kirton McConkie | August 28, 2017
Have you ever thought about how the word “limit” defines our perceptions of and interactions with the world around us? The concept of a “limit” engenders thoughts of a boundary, an edge, or an end. When we say something is limited, we are suggesting that it is restricted, constrained, or regulated. Something that is limited is imperfect or incomplete. We speak of pushing things to the limit when we are going to the edge of our abilities, or we declare the “sky’s the limit” to indicate that things are unrestricted.
The word “limit” also carries an abundance of meaning when it’s used in the context of analyzing a worker’s ability to perform basic work activities and whether an injured worker is entitled to permanent total disability (PTD) benefits under Utah’s workers’ compensation statutory scheme. The way the word is used in Utah law was key in a recent decision by the Utah Supreme Court addressing whether a construction worker who was injured on the job was entitled to PTD benefits.
Decision makers go back and forth
Mark Oliver was working for D. Tyree Bulloch Construction on March 27, 2000. While he was on a Bulloch construction site, he fell from a suspended porch and was injured. For years after the injury, he worked in a variety of jobs, including as a construction worker, landscape designer, and delivery truck driver. In 2007, he stopped working altogether.
Several years after he was injured on the job, Oliver applied to the Utah Labor Commission for PTD benefits under Utah’s Workers’ Compensation Act. The parties presented conflicting medical and vocational evidence to the commission. Both Oliver and Bulloch had medical experts who provided opinions on Oliver’s ability to work. Dr. Mark Passey opined that Oliver is able to perform “just about any activities he wishes to do.” By contrast, Dr. Jacob Corry opined that he suffers from constant attention difficulties because of his pain and is severely restricted in his ability to walk, balance, and crouch.
In addition, the parties had vocational experts who testified about Oliver’s ability to work. Oliver’s vocational expert testified that he likely couldn’t perform basic work activities because of his inability to concentrate. Bulloch’s vocational expert disagreed, opining that Oliver could perform “medium-duty” work and wasn’t limited in his ability to perform basic work activities. However, Bulloch’s vocational expert conceded that if Corry’s medical opinion was correct, Oliver likely wouldn’t be able to perform basic work activities.
Because of that conflicting evidence, an administrative law judge (ALJ) appointed an independent medical panel to perform an impartial review of the medical evidence. The panel determined that Oliver could perform medium-duty work as long as he was able to be absent from work occasionally, elevate his legs for five to 10 minutes every hour, and take occasional unscheduled breaks. In addition, the panel concluded that he is able to perform basic work activities. It found that he could concentrate, commute, communicate, work, remain at work, and cope with the work setting.
The ALJ reviewed the evidence, concluded that Oliver was permanently totally disabled, and tentatively awarded him PTD benefits. Bulloch appealed the award of benefits, and the commission reversed the ALJ’s decision on two grounds.
First, relying on the medical panel’s report, the commission concluded that Oliver failed to prove that he was limited in his ability to perform basic work activities. The commission noted that although the panel determined that he might require unscheduled breaks and occasionally need to be absent from work, it found that the “indefinite circumstances do not present a reasonable limitation on [his] ability to do basic work activities,” particularly in light of its conclusion that he could work, remain at work, and cope with work changes. The commission also noted that being required to elevate his legs for five to 10 minutes every hour wasn’t enough to show that he was reasonably limited in his flexibility and endurance. Second, the commission disagreed with the ALJ’s determination that Oliver couldn’t perform the essential functions of his work as a delivery truck driver.
The commission denied Oliver’s claim for PTD benefits for two reasons:
(1) He was not limited in his ability to perform basic work activities.
(2) He was not prevented from performing the essential functions of the work for which he was qualified up to the time of his on-the-job injury.
Oliver appealed the commission’s decision to the Utah Court of Appeals, which reversed the denial of benefits. The court found that the commission misinterpreted the “basic work activities provision” of the statute applicable to permanent total disabilities. The court also consulted the U.S. Bureau of Labor Statistics’ (BLS) Occupational Outlook Handbook (which wasn’t in the record as evidence during the commission proceedings) and concluded that the commission’s determination that Oliver was qualified to work as a delivery truck driver wasn’t supported by substantial evidence. The court of appeals reinstated the ALJ’s PTD benefits award. Bulloch appealed to the Utah Supreme Court.
Proving entitlement to PTD benefits
The Utah Supreme Court reversed the decision of the Utah Court of Appeals and concluded that the commission properly denied Oliver’s application for PTD benefits. To put the issues into context, the supreme court first explained what an employee must prove to qualify for PTD benefits. Under Utah Code Section 34A- 2-413(1), an employee seeking an award of PTD benefits must meet six factors:
(1) He sustained a significant impairment as a result of the work-related injury.
(2) He is not gainfully employed.
(3) He has an impairment or a combination of impairments that limits his ability to perform basic work activities.
(4) His impairment or impairments prevent him from performing the essential functions of the work for which he was qualified until the time of the accident.
(5) He cannot perform other work that’s reasonably available.
(6) The industrial accident or occupational disease is the direct cause of his permanent total disability.
The court clearly placed the burden of proving each of those elements by a preponderance of the evidence on the employee. Most of the inquiries focus on the employee’s ability to work. If the employee fails to prove even one of the six elements, his claim for PTD benefits will be denied.
Pushing the limits
The Utah Supreme Court first examined the “basic work activities” element of Section 34A-2-413(1)(c)(ii). This element requires employees seeking PTD benefits to prove they have “an impairment or combination of impairments that limit [their] ability to do basic work activities.” The issue in this case was the meaning of the word “limit” as it is used in the statute.
The court of appeals maintained that employees can show a “limit” on their ability to do basic work activities by producing evidence of any limitation on their ability to work, no matter how slight. In other words, even employees capable of performing basic work activities would be able to establish a claim for PTD benefits if they can show “some limitation” on their performance of basic activities.
The supreme court disagreed with the court of appeals’ interpretation, concluding that it was at odds with the “basic work activities” element in the statute. Looking to Provo City v. Utah Labor Commission, a case it decided in 2015, the supreme court explained that it has previously held that “basic work activities” are not just any activities performed in the workplace; rather, they are the activities that are essential to “a broad spectrum of jobs available.” In other words, they are the abilities that allow an employee to perform most jobs, including more sedentary lines of work.
The court then turned to an examination of how “limit” is used in the statute. It acknowledged that “limit” has a variety of possible meanings, but the word is not used in isolation in the statute. According to the court, it’s clear that in the context of the statute, whether an employee is “limited” in his ability to perform basic work activities depends on whether, irrespective of any impairments, he is meaningfully able to perform the “core tasks” that are the basic requirements for employment.
Being “limited” in the ability to perform basic work activities is really a question of whether an employee has the abilities and aptitudes necessary for most jobs. If a limitation doesn’t hinder the employee from meaningfully engaging in the workforce, he may be limited in performing typical activities, but he isn’t limited in performing “basic” work activities. Thus, the supreme court concluded that the court of appeals incorrectly interpreted the word “limit” in the statute, and the commission correctly interpreted it.
In short, the supreme court concluded that only impairments that strike at the heart of the abilities and aptitudes necessary for most jobs actually limit an employee’s ability to do basic work activities. In other words, an impairment must meaningfully inhibit an employee from performing the core tasks of a wide swath of jobs, making it unreasonable for an employer to ask the employee to perform those tasks.
The supreme court noted that interpretation isn’t consistent with federal disability law. However, federal law doesn’t govern the interpretation of the word “limit” as it’s used in the state’s workers’ comp law. Applying its interpretation, the supreme court concluded the commission’s determination that Oliver failed to satisfy the basic work activities element was supported by substantial evidence.
Analyzing the essential functions provision
The Utah Supreme Court also analyzed the essential functions provision of the statute when it considered Oliver’s application for PTD benefits. Under the statute, an employee must show that his impairments “prevent [him] from performing the essential functions of the work activities for which [he] has been qualified until the time of the industrial accident.” The commission found that Oliver failed to prove that his impairments prevented him from performing the “essential functions” of a delivery truck driver, a job he was qualified to perform at the time of his work-related accident.
The court noted that an employee merely has to present evidence that the only job he is qualified to perform is the job he held at the time of the injury. However, an employer can counter that evidence with proof that the employee is qualified for another job (in this case, delivery truck driver). The employee must then respond with evidence that he cannot perform the essential functions of that position. Oliver couldn’t do that. Accordingly, the court concluded that he failed to meet his burden on the essential functions element of the statute.
The supreme court also noted that the court of appeals shouldn’t have considered information about the qualifications of delivery truck drivers from the BLS that wasn’t on the record before the commission. The supreme court upheld the denial of Oliver’s application for PTD benefits. Oliver v. Utah Labor Commission, Workers’ Compensation Fund, 2017 UT 39 (Utah July 25, 2017).
This case illustrates that under Utah’s workers’ comp statute, an employee will be entitled to PTD benefits only if he is limited in the abilities and aptitudes necessary to perform most jobs. When confronted with a claim for PTD benefits, you should focus on whether the employee has the ability to perform the basic job duties—i.e., the core functions—of the majority of jobs, including sedentary jobs. If you concentrate on satisfying that standard, you will be better able to defeat overreaching claims for PTD benefits.