The activity of lifting less than 50 pounds while turning one’s neck is considered unusual and extraordinary when doing so in a hurry and facing exigent circumstances.

In Watson, the petitioner was employed as a nurse and was caring for a severely disabled child that had a tracheotomy, resulting in a hole in the child’s neck to facilitate breathing. When the petitioner arrived to care for the child, the child was covered in diarrhea from head to toe. Knowing that if the excrement entered the child’s tracheotomy hole there could be life-threatening complications, the petitioner rushed the child to the bathroom and as she lowered the child into the bath, snapped her head up to look for the shower head and aggravated a preexisting neck condition.

The ALJ found the exertion to be unusual and extraordinary and awarded temporary disability benefits but did not award permanent total disability. Both parties appealed.

The Utah Court of Appeals (the “Court”) held that the petitioner failed to prove element four of her claim for permanent total disability. The fourth element requires a showing that the industrial accident prevented the employee from performing jobs for which she was qualified before the accident. Utah Code Ann. § 34A-2-413. The Court affirmed the ALJ’s finding that “the preponderance of the medical and vocational evidence presented is more persuasive regarding [the petitioner’s] ability to work as a nursing services director than her subjective assertions on her physical limitations.” Furthermore, no physicians opined that she could not work. So “even though another conclusion ‘from the evidence is permissible,’ such as the one the petitioner puts forth, we cannot disturb the ALJ’s ultimate finding on this claim because it was based on substantial evidence.

The Court however found that the petitioner’s exertion was unusual and extraordinary. The Court reiterated that when a the petitioner suffers from a preexisting condition, they must show that the “employment contributed something substantial to increase the risk he already faced in everyday life because of his condition,” i.e. an unusual and extraordinary exertion. In this case, when the petitioner was responding to a medical emergency, the toddler was slippery and the petitioner had to keep excrement from entering the tracheotomy tube without dropping the toddler and then locate the showerhead. Considering the totality of the circumstances, the petitioner’s exertions were determined to be unusual and extraordinary. The Court held that even though holding a twenty-five-pound object and twisting one’s head around is not in and of itself an unusual or extraordinary exertion, “the exigency of the circumstances [the petitioner] confronted takes it well beyond normal activities. … [The petitioner] was presented with an unanticipated situation while in a hurry, and while under circumstances that were more fraught than those in Oceguera. See Oceguera v. Labor Commission, 2020 UT App 83, 468 P.3d 544 (holding that an exertion was unusual and extraordinary when the employee performed an ordinary activity, depressing a foot pedal, while in a rush and while experiencing an unexpected obstacle).

Watson v. Labor Comm’n, 2020 UT App 170.

Want to know more? Contact Jeffrey Callister at jcallister@pollartmiller.com or 877-259-5693.

February 2021 Newsletter

2021-02-26T14:27:33+00:00