{"id":892824,"date":"2017-08-31T13:42:18","date_gmt":"2017-08-31T19:42:18","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=892824"},"modified":"2017-08-31T13:42:18","modified_gmt":"2017-08-31T19:42:18","slug":"utah-evaluates-workers-entitlement-ptd-benefits","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/utah-evaluates-workers-entitlement-ptd-benefits\/","title":{"rendered":"How Utah Evaluates a Worker\u2019s Entitlement to PTD Benefits"},"content":{"rendered":"

Ryan B. Frazier | Kirton McConkie<\/a> | August 28, 2017<\/p>\n

Have you ever thought about how the word \u201climit\u201d de\u00adfines our perceptions of and interactions with the world around us? The concept of a \u201climit\u201d engenders thoughts of a bound\u00adary, 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 \u201csky\u2019s the limit\u201d to indicate that things are unrestricted.<\/em><\/p>\n

The word \u201climit\u201d also carries an abundance of meaning when it\u2019s used in the context of analyzing a worker\u2019s ability to perform basic work activities and whether an injured worker is entitled to permanent total disability (PTD) benefits under Utah\u2019s workers\u2019 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 construc\u00adtion worker who was injured on the job was entitled to PTD benefits.<\/em><\/p>\n

Decision makers go back and forth<\/em><\/strong><\/p>\n

Mark Oliver was working for D. Tyree Bulloch Con\u00adstruction 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 de\u00adsigner, and delivery truck driver. In 2007, he stopped work\u00ading altogether.<\/p>\n

Several years after he was injured on the job, Oliver applied to the Utah Labor Commission for PTD benefits under Utah\u2019s Workers\u2019 Compensation Act. The parties presented conflicting medical and vocational evidence to the commission. Both Oliver and Bulloch had medi\u00adcal experts who provided opinions on Oliver\u2019s ability to work. Dr. Mark Passey opined that Oliver is able to perform \u201cjust about any activities he wishes to do.\u201d 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.<\/p>\n

In addition, the parties had vocational experts who testified about Oliver\u2019s ability to work. Oliver\u2019s voca\u00adtional expert testified that he likely couldn\u2019t perform basic work activities because of his inability to concen\u00adtrate. Bulloch\u2019s vocational expert disagreed, opining that Oliver could perform \u201cmedium-duty\u201d work and wasn\u2019t limited in his ability to perform basic work ac\u00adtivities. However, Bulloch\u2019s vocational expert conceded that if Corry\u2019s medical opinion was correct, Oliver likely wouldn\u2019t be able to perform basic work activities.<\/p>\n

Because of that conflicting evidence, an administra\u00adtive law judge (ALJ) appointed an independent medical panel to perform an impartial review of the medical evidence. The panel determined that Oliver could per\u00adform 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 con\u00adcentrate, commute, communicate, work, remain at work, and cope with the work setting.<\/p>\n

The ALJ reviewed the evidence, concluded that Oli\u00adver was permanently totally disabled, and tentatively awarded him PTD benefits. Bulloch appealed the award of benefits, and the commission reversed the ALJ\u2019s deci\u00adsion on two grounds.<\/p>\n

First, relying on the medical panel\u2019s 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 \u201cindefinite circumstances do not present a rea\u00adsonable limitation on [his] ability to do basic work activi\u00adties,\u201d 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\u2019t enough to show that he was reasonably limited in his flexibility and endurance. Second, the commission disagreed with the ALJ\u2019s determination that Oliver couldn\u2019t perform the essential functions of his work as a delivery truck driver.<\/p>\n

The commission denied Oliver\u2019s claim for PTD ben\u00adefits for two reasons:<\/p>\n

(1) He was not limited in his ability to perform basic work activities.<\/p>\n

(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.<\/p>\n

Oliver appealed the commission\u2019s decision to the Utah Court of Appeals, which reversed the denial of benefits. The court found that the commission misinter\u00adpreted the \u201cbasic work activities provision\u201d of the stat\u00adute applicable to permanent total disabilities. The court also consulted the U.S. Bureau of Labor Statistics\u2019 (BLS) Occupational Outlook Handbook (which wasn\u2019t in the record as evidence during the commission proceedings) and concluded that the commission\u2019s determination that Oliver was qualified to work as a delivery truck driver wasn\u2019t supported by substantial evidence. The court of appeals reinstated the ALJ\u2019s PTD benefits award. Bull\u00adoch appealed to the Utah Supreme Court.<\/p>\n

Proving entitlement to PTD benefits<\/em><\/strong><\/p>\n

The Utah Supreme Court reversed the decision of the Utah Court of Appeals and concluded that the com\u00admission properly denied Oliver\u2019s 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:<\/p>\n

(1) He sustained a significant impairment as a result of the work-related injury.<\/p>\n

(2) He is not gainfully employed.<\/p>\n

(3) He has an impairment or a combination of impair\u00adments that limits his ability to perform basic work activities.<\/p>\n

(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.<\/p>\n

(5) He cannot perform other work that\u2019s reasonably available.<\/p>\n

(6) The industrial accident or occupational disease is the direct cause of his permanent total disability.<\/p>\n

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 employ\u00adee\u2019s ability to work. If the employee fails to prove even one of the six elements, his claim for PTD benefits will be denied.<\/p>\n

Pushing the limits<\/em><\/strong><\/p>\n

The Utah Supreme Court first examined the \u201cbasic work activities\u201d element of Section 34A-2-413(1)(c)(ii). This element requires employees seeking PTD benefits to prove they have \u201can impairment or combination of impairments that limit [their] ability to do basic work ac\u00adtivities.\u201d The issue in this case was the meaning of the word \u201climit\u201d as it is used in the statute.<\/p>\n

The court of appeals maintained that employees can show a \u201climit\u201d on their ability to do basic work activities by producing evidence of any limitation on their abil\u00adity 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 \u201csome limitation\u201d on their performance of basic activities.<\/p>\n

The supreme court disagreed with the court of ap\u00adpeals\u2019 interpretation, concluding that it was at odds with the \u201cbasic work activities\u201d element in the statute. Looking to\u00a0Provo City v. Utah Labor Commission,\u00a0<\/em>a case it decided in 2015, the supreme court explained that it has previously held that \u201cbasic work activities\u201d are not just any activities performed in the workplace; rather, they are the activities that are essential to \u201ca broad spectrum of jobs available.\u201d In other words, they are the abilities that allow an employee to perform most jobs, including more sedentary lines of work.<\/p>\n

The court then turned to an examination of how \u201climit\u201d is used in the statute. It acknowledged that \u201climit\u201d has a variety of possible meanings, but the word is not used in isolation in the statute. According to the court, it\u2019s clear that in the context of the statute, whether an employee is \u201climited\u201d in his ability to per\u00adform basic work activities depends on whether, irrespec\u00adtive of any impairments, he is meaningfully able to per\u00adform the \u201ccore tasks\u201d that are the basic requirements for employment.<\/p>\n

Being \u201climited\u201d 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\u2019t hinder the employee from mean\u00adingfully engaging in the workforce, he may be limited in performing typical activities, but he isn\u2019t limited in performing \u201cbasic\u201d work activities. Thus, the supreme court concluded that the court of appeals incorrectly interpreted the word \u201climit\u201d in the statute, and the commission correctly interpreted it.<\/p>\n

In short, the supreme court concluded that only im\u00adpairments that strike at the heart of the abilities and ap\u00adtitudes necessary for most jobs actually limit an employ\u00adee\u2019s 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 em\u00adployee to perform those tasks.<\/p>\n

The supreme court noted that interpretation isn\u2019t consistent with federal disability law. However, federal law doesn\u2019t govern the interpretation of the word \u201climit\u201d as it\u2019s used in the state\u2019s workers\u2019 comp law. Applying its interpretation, the supreme court concluded the com\u00admission\u2019s determination that Oliver failed to satisfy the basic work activities element was supported by substan\u00adtial evidence.<\/p>\n

Analyzing the essential functions provision<\/em><\/strong><\/p>\n

The Utah Supreme Court also analyzed the essen\u00adtial functions provision of the statute when it considered Oliver\u2019s application for PTD benefits. Under the statute, an employee must show that his impairments \u201cprevent [him] from performing the essential functions of the work activities for which [he] has been qualified until the time of the industrial accident.\u201d The commission found that Oliver failed to prove that his impairments prevented him from performing the \u201cessential func\u00adtions\u201d of a delivery truck driver, a job he was qualified to perform at the time of his work-related accident.<\/p>\n

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, deliv\u00adery truck driver). The employee must then respond with evidence that he cannot perform the essential functions of that position. Oliver couldn\u2019t do that. Accordingly, the court concluded that he failed to meet his burden on the essential functions element of the statute.<\/p>\n

The supreme court also noted that the court of ap\u00adpeals shouldn\u2019t have considered information about the qualifications of delivery truck drivers from the BLS that wasn\u2019t on the record before the commission. The su\u00adpreme court upheld the denial of Oliver\u2019s application for PTD benefits.\u00a0Oliver v. Utah Labor Commission, Workers\u2019 Compensation Fund,\u00a0<\/em>2017 UT 39 (Utah July 25, 2017).<\/p>\n

Lessons learned<\/em><\/strong><\/p>\n

This case illustrates that under Utah\u2019s workers\u2019 comp statute, an employee will be entitled to PTD ben\u00adefits only if he is limited in the abilities and aptitudes necessary to perform\u00a0most\u00a0<\/em>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\u2014i.e., the core functions\u2014of the majority of jobs, including sedentary jobs. If you concentrate on satisfy\u00ading that standard, you will be better able to defeat over\u00adreaching claims for PTD benefits.<\/p>\n","protected":false},"excerpt":{"rendered":"

Ryan B. Frazier | Kirton McConkie | August 28, 2017 Have you ever thought about how the word \u201climit\u201d de\u00adfines our perceptions of and interactions with the world around us? The concept of a \u201climit\u201d engenders thoughts of a bound\u00adary, an edge, or an end. When we say something is limited, we are suggesting that… Continue reading How Utah Evaluates a Worker\u2019s Entitlement to PTD Benefits<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false},"version":2}},"categories":[3,8782],"tags":[9895,3,10254,361,106,10255],"class_list":["post-892824","post","type-post","status-publish","format-standard","hentry","category-insurance-claims","category-personal-injury","tag-advise-consult","tag-insurance-claims","tag-permanent-total-disability","tag-personal-injury","tag-utah","tag-workers-compensation","entry"],"jetpack_publicize_connections":[],"yoast_head":"\nHow Utah Evaluates a Worker\u2019s Entitlement to PTD Benefits - 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