2015 UT App 94

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THE UTAH COURT OF APPEALS

LAURIE L. MITCHELL,

Petitioner,

v.

LABOR COMMISSION, MILLIKEN & CO.,

AND LIBERTY MUTUAL,

Respondents.

Memorandum Decision

No. 20131153-CA

Filed April 16, 2015

Original Proceeding in this Court

Virginius Dabney and Robert W. Ickes, 

Attorneys for Petitioner

Jaceson R. Maughan, Attorney for Respondent 

Labor Commission

Dori K. Petersen, Attorney for Respondents

Milliken & Co. and Liberty Mutual

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum 

Decision, in which JUDGES J. FREDERIC VOROS JR. and KATE A.

TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Laurie L. Mitchell was an employee of Milliken & Co., a 

St. George textile company. In 2007, she was treated for pain and 

tendon impingement in her right shoulder. The following year, 

she suffered an injury to her right shoulder at work when she 

attempted to throw a rope over the rollers of a fabric-winding 

machine. At that time, Mitchell was diagnosed with an acute tear 

of her right rotator cuff and chronic injury to the tendons of her 
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20131153-CA 2 2015 UT App 94

rotator cuff. After this accident, Mitchell applied for workers’ 

compensation benefits. The Labor Commission denied Mitchell’s 

application, reasoning that her preexisting shoulder condition 

had contributed to her injury and that she had not shown that 

her work activities were an unusual exertion that increased her 

risk of aggravating that preexisting condition. She now seeks 

judicial review of the Commission’s decision.

¶2 Generally, an employee is entitled to workers’

compensation benefits if she can demonstrate that she was 

injured by an accident at her workplace ‚arising out of and in 

the course of [her] employment.‛ Utah Code Ann. § 34A-2-401(1) 

(LexisNexis 2005). The Utah Supreme Court has explained that

to show that an accident ‚aris*es+ out of [and] in the course of 

employment,‛ the employee must demonstrate that the 

conditions or activities of her job were both the medical and 

legal cause of the injury. Murray v. Labor Comm’n, 2013 UT 38, 

¶¶ 44–45, 308 P.3d 461 (second alteration in original) (citation 

and internal quotation marks omitted). For a claimant who does 

not suffer from a preexisting condition that contributes to the 

injury, the medical and legal causation requirements are 

identical and the employee need only prove medical causation. 

Id. ¶ 45. However, where the claimant has a preexisting 

condition that contributes to the injury, the claimant must show 

that ‚the employment contributed something substantial to 

increase the risk [she] already faced in everyday life because of 

[her] condition,‛ usually by demonstrating that the activities or 

conditions of her work were ‚unusual or extraordinary‛ as 

compared to ‚the usual wear and tear and exertions of 

nonemployment life.‛ Id. ¶¶ 46, 48 (citations and internal 

quotation marks omitted).

¶3 Mitchell raises three issues in her petition for judicial 

review. First, she argues that she should not have been required 

to demonstrate an ‚unusual exertion‛ in order to prove that her 

workplace accident was the legal cause of her injury. ‚*W+here 

the claimant suffers from a preexisting condition which 
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20131153-CA 3 2015 UT App 94

contributes to the injury, an unusual or extraordinary exertion is 

required to prove legal causation.‛ Allen v. Industrial Comm'n, 

729 P.2d 15, 26 (Utah 1986). Mitchell argues that ‚*n+o medical 

opinion exists in this case that establishes‛ that Mitchell’s 

preexisting condition contributed to her work injury. We 

disagree. 

¶4 ‚We must uphold the Commission’s factual findings if 

such findings are supported by substantial evidence based upon 

the record as a whole.‛ Estate of Reitz v. Labor Comm'n, 2014 UT 

App 290, ¶ 5, 341 P.3d 257 (citation and internal quotation marks 

omitted). The Commission found that ‚Mitchell had a preexisting right-shoulder condition that contributed to her work 

injury.‛ The Commission’s finding is supported by the 

uncontradicted medical opinion of Milliken’s medical expert, 

who opined that Mitchell’s ‚pre-existing impingement 

syndrome certainly contributed to the subsequent right shoulder 

problems‛ and that Mitchell’s injury was ‚an industrial 

aggravation of a pre-existing right shoulder condition.‛ We 

therefore conclude that the finding is supported by substantial 

evidence and, accordingly, that the Commission did not err in 

determining that Mitchell needed to show an unusual or 

extraordinary exertion to prove legal causation. See id.; see also 

Allen, 729 P.2d at 26.

¶5 Next, Mitchell argues that the Commission erred in 

concluding that throwing the rope over the winding machine

did not constitute an unusual exertion. In evaluating whether 

Mitchell’s employment activity involved an unusual or 

extraordinary exertion, we must consider ‚the totality of the 

circumstances‛ of the employment activity, ‚including the 

employee’s exertions and the workplace conditions.‛ Murray,

2013 UT 38, ¶ 47. We then decide whether the employment 

activity is ‚objectively unusual or extraordinary.‛ Id. ¶ 48. In 

doing so, we must ‚compare the activity that precipitated the 

employee’s injury with the usual wear and tear and exertions of 

nonemployment life.‛ Id. (citation and internal quotation marks 
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20131153-CA 4 2015 UT App 94

omitted). The focus of this inquiry is on ‚what typical 

nonemployment activities are generally expected of people in 

today’s society, not what this particular claimant is accustomed 

to doing.‛ Id. (citation and internal quotation marks omitted).

¶6 The parties do not dispute the factual circumstances of 

Mitchell’s injury as found by the Commission:

Mitchell tried to throw a rope upwards and over 

one of the machine’s rollers, which was 

approximately 15 feet off the ground. The entire 

weight of the rope was less than 10 pounds and the 

portion [Mitchell] was throwing weighed about 

two pounds. [Mitchell] twice attempted to throw 

one end of the rope over the roller without success. 

On the third attempt, she threw the rope 

underhand and felt a tearing sensation in her right 

shoulder.

‚Utah courts have deemed employment activities to be ‘unusual’ 

or ‘extraordinary’ when they require an employee to endure 

jumping, lifting great weight, or repetition.‛ Murray, 2013 UT 38, 

¶ 51. For example, our courts have recognized that moving a 

two-hundred-pound sign, jumping into an eight-foot hole at 

thirty-minute intervals, and continually gripping a high-pressure 

hose are unusual activities. Id. However, enduring minor force 

or jostling and carrying loads of fifteen pounds or more involve 

exertions ‚comparable to nonemployment activities generally 

expected in today’s society.‛ Id. ¶ 53 (noting that travelers 

generally carry luggage or bags heavier than fifteen pounds).

‚Typical activities and exertions‛ include ‚taking full garbage 

cans to the street, lifting and carrying baggage for travel, 

changing a flat tire on an automobile, lifting a small child to 

chest height, and climbing the stairs in buildings.‛ Allen, 729 

P.2d at 26.
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20131153-CA 5 2015 UT App 94

¶7 The Commission determined that Mitchell’s work activity

was not unusual or extraordinary. The ALJ characterized the 

activity as ‚throwing a light rope up and over a roller,‛ and 

concluded that this activity was less strenuous than a number of 

common nonemployment exertions. The ALJ determined that

the action was similar to casting a fishing line, throwing a rope 

to secure a load in a truck or trailer, or throwing a rope over a 

branch to hang a child’s swing. The ALJ determined that 

throwing the rope required less exertion than lifting a child up 

or lifting luggage into an overhead bin on an airplane. In 

affirming the ALJ’s decision, the Commission largely rejected the 

ALJ’s comparisons, explaining that the activities identified by 

the ALJ were either dissimilar to the ‚sudden upward rotation of 

the shoulder‛ involved here or not sufficiently common 

nonwork activities. The Commission instead analogized 

Mitchell’s rope toss to shaking out a rug or bowling, concluding 

that these are common nonemployment activities that involve 

similar exertions.

¶8 Because ‚‘unusualness’ . . . is an objective legal standard 

that we are in a better position to analyze than the Commission,‛ 

we must determine whether the circumstances of Mitchell’s 

injury were unusual without deference to the Commission’s 

decision. Murray v. Labor Comm'n, 2013 UT 38, ¶ 40, 308 P.3d 461.

However, as the party seeking relief from the Commission’s 

action, Mitchell bears the burden of demonstrating that the 

Commission’s determination was erroneous. O'Rourke v. Utah 

State Tax Comm'n, 830 P.2d 230, 232 (Utah 1992). We conclude 

that she has failed to meet her burden here.

¶9 Mitchell argues that ‚the dynamics of her having to throw 

[two pounds of rope] up approximately 15 feet off the floor and 

over a winding machine is unusual.‛ While she faults the 

Commission’s comparisons of this exertion to those involved in 

bowling or shaking a rug as inexact or ill-defined, Mitchell does 

nothing to demonstrate that her action in throwing the rope is 

comparable to activities our courts have deemed unusual or 
Mitchell v. Labor Commission

20131153-CA 6 2015 UT App 94

extraordinary. She has not shown that throwing a small mass of 

rope in the air is in the same class of exertion as moving a twohundred-pound sign or repeatedly jumping into an eight-foot 

pit. See Murray, 2013 UT 38, ¶ 51. Indeed, she has failed to 

explain how this activity involves a greater exertion than 

handling full garbage cans or carrying a loaded suitcase, both of 

which involve significantly greater static loads but are 

considered ‚typical‛ exertions by our courts. See Allen v. 

Industrial Comm’n, 729 P.2d 15, 26 (Utah 1986). Ultimately, 

Mitchell simply has not demonstrated that the underhand throw 

of a two-pound weight must be ‚presumed to have contributed 

something substantial to increase the risk of injury‛ above and 

beyond a normal, everyday activity or that the Commission 

erred in concluding otherwise. See Murray, 2013 UT 38, ¶ 53

(citation and internal quotation marks omitted). Because she has 

not met her burden to demonstrate that the Commission’s 

determination was erroneous, we decline to disturb that ruling. 

¶10 Last, Mitchell argues that Allen v. Industrial Commission, 

729 P.2d 15 (Utah 1986), creates an ‚unworkable and outdated 

standard that discriminates against disabled and elderly workers 

with pre-existing conditions‛ and ‚should be reviewed for its 

future application in workers compensation law.‛ ‚Vertical stare 

decisis . . . compels a court to follow strictly the decisions 

rendered by a higher court.‛ State v. Menzies, 889 P.2d 393, 399 

n.3 (Utah 1994). ‚Under this mandate, lower courts are obliged 

to follow the holding of a higher court . . . .‛ Id. Allen was 

decided by the Utah Supreme Court in 1986, and the principles 

embodied in Allen were reaffirmed by that court in Murray v. 

Labor Commission, 2013 UT 38, 308 P.3d 461. This court must 

‚follow strictly the decisions rendered by‛ the Utah Supreme 

Court, Menzies, 889 P.2d at 399 n.3, and we are therefore not 

empowered to revisit or depart from the Allen rule in workers’ 

compensation cases. Accordingly, we must reject Mitchell’s 

invitation for us to do so.
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20131153-CA 7 2015 UT App 94

¶11 The Commission’s finding that Mitchell’s preexisting 

condition contributed to her industrial accident is supported by 

the record, and the Commission therefore correctly required 

Mitchell to demonstrate an unusual or extraordinary exertion to 

prove legal causation. Mitchell has failed to demonstrate error in 

the Commission’s determination that her work activities did not

require an unusual or extraordinary exertion. And we cannot 

depart from our supreme court’s precedent in Allen regarding 

the application of the unusual-exertion doctrine in workers’ 

compensation cases. We therefore decline to disturb the 

Commission’s ruling denying Mitchell’s claim for workers’ 

compensation benefits.

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