2016 UT App 12

THE UTAH COURT OF APPEALS

LETICIA PETERSON,

Petitioner,

v.

LABOR COMMISSION, FRESH MARKET STORE #2395,

AND PHOENIX INSURANCE CO.,

Respondents.

Memorandum Decision

No. 20141063-CA

Filed January 22, 2016

Original Proceeding in this Court

Loren M. Lambert, Attorney for Petitioner

Jaceson R. Maughan, Attorney for Respondent 

Labor Commission

Mark R. Sumsion and Cody G. Kesler, Attorneys

for Respondents Fresh Market Store #2395 and 

Phoenix Insurance Co.

JUSTICE JOHN A. PEARCE authored this Memorandum Decision, in 

which JUDGES GREGORY K. ORME and STEPHEN L. ROTH

concurred.

1

PEARCE, Justice:

¶1 Leticia Peterson seeks judicial review of the Utah Labor 

Commission Appeals Board’s (the Board) order denying her 

 

1. Justice John A. Pearce began his work on this case as a 

member of the Utah Court of Appeals. He became a member of 

the Utah Supreme Court thereafter and completed his work on 

the case sitting by special assignment as authorized by law. See 

generally Utah R. Jud. Admin. 3-108(3).
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20141063-CA 2 2016 UT App 12

claims for workers’ compensation benefits. We conclude that 

Peterson is entitled to compensation for the industrial accident 

she suffered during her employment at Fresh Market Store #2395 

(Fresh Market). We therefore set aside the Board’s order and 

return this matter to the Labor Commission for the entry of such 

an award.

¶2 Peterson began working at Fresh Market, a supermarket,

as a cake decorator in February 2005.2 Her regular duties 

included lifting and moving cakes and buckets of frosting. The 

cakes weighed about four pounds each, and the buckets of 

frosting weighed as much as forty-two pounds. On an average 

work day, Peterson decorated thirty cakes. Peterson’s duties also 

included general bakery work such as bagging rolls, putting 

away frozen goods, and cleaning.

¶3 On October 5, 2011, Peterson suffered a workplace injury 

to her right rotator cuff. The injury occurred as Peterson was 

reaching with her right arm to remove a tray of cakes from a 

rack located directly behind her work table. The tray held four 

cakes, weighed over sixteen pounds, and was positioned about 

shoulder-height on the rack. Peterson twisted around and lifted 

the tray by placing her right palm underneath it while stabilizing 

 

2. When Peterson was hired in 2005, the supermarket was under 

different ownership and was operated as an Albertsons. Around 

the end of 2009, Associated Food Stores purchased the store and 

renamed it Fresh Market. It thus appears that Peterson’s actual 

employer may be Associated Food Stores, rather than the 

establishment it operates as Fresh Market. However, neither the 

change of ownership nor any confusion over the name of 

Peterson’s employer (as evidenced by Peterson listing the Fresh 

Market store where she worked in the caption of her pleading) 

affects our resolution of this matter.
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it with her left hand.

3 As she turned back to place the tray on the 

table, she felt an instant burning pain in her shoulder that caused 

her to drop the tray of cakes. An MRI exam revealed that 

Peterson had suffered a torn rotator cuff in her right shoulder.

¶4 Peterson filed an application for hearing with the Utah 

Labor Commission, asserting an industrial accident claim and 

seeking workers’ compensation benefits. An administrative law 

judge (the ALJ) took Peterson’s testimony about the 

circumstances surrounding her injury. The ALJ referred the 

matter to a medical panel to determine whether Peterson had a 

preexisting condition that contributed to the injury. The medical 

panel found that Peterson did have a preexisting shoulder 

condition in her right shoulder, which contributed to the injury. 

In light of the medical panel’s opinion, the ALJ evaluated 

Peterson’s industrial accident claim under Allen v. Industrial 

Commission, 729 P.2d 15 (Utah 1986), to determine whether 

Peterson’s ‚work at Fresh Market on October 5, 2011, involved 

some unusual or extraordinary exertion over and above the 

usual wear and tear exertions of nonemployment life.‛ The ALJ 

found that the work activities that caused Peterson’s injury were

not unusual or extraordinary and were therefore not the legal 

cause of her injury. For this reason, the ALJ denied Peterson’s 

industrial accident claim.

¶5 Peterson appealed the ALJ’s ruling to the Board, arguing 

that the ALJ erroneously applied the Allen test to her claim.

While this appeal was pending, Peterson filed another 

application for hearing, this time alleging that long-term wear 

and tear on her shoulder occurring during her employment at 

Fresh Market constituted an occupational disease that 

manifested itself in the October 2011 injury. Without reference to 

 

3. During her testimony, Peterson agreed with her counsel’s 

characterization that she lifted the tray ‚palm up, thumb 

towards your shoulder, like a waiter carries a plate of food.‛
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Peterson’s occupational disease claim, the Board set aside the 

ALJ’s ruling because it could not determine whether Peterson’s 

preexisting condition arose from her work at Fresh Market or 

from other causes. The Board remanded the industrial accident 

claim to the ALJ for further findings about the cause and timing 

of Peterson’s preexisting condition in relation to her 

employment at Fresh Market.

¶6 On remand, the ALJ consolidated Peterson’s industrial 

accident and occupational disease claims into a single 

proceeding and again referred the matter to a medical panel. The 

medical panel found:

[T]he work activities at Fresh Market from 

February 1, 2005 [until the injury] contributed 40% 

of the causation or aggravation associated with the 

right shoulder condition. The remaining 60% of

causation has been contributed by other factors, 

equally divided between occupational repetitive 

motion of the shoulder at previous jobs and 

personal factors (such as genetics and rotational 

movement of the shoulder while doing personal 

activities).

In other words, the medical panel found that Peterson’s 

preexisting shoulder condition was 40% attributable to her work 

at Fresh Market, 30% attributable to her other jobs, and 30% 

attributable to personal, non-work factors.

¶7 Relying on the panel’s findings, the ALJ concluded that 

Peterson’s claims required analysis as an occupational disease 

rather than as an industrial accident, because Peterson’s 

shoulder condition was ‚due to her work activities and personal 

factors over many years.‛ The ALJ awarded Peterson workers’

compensation benefits for occupational disease but reduced her 

temporary total disability compensation by 60% because only 
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20141063-CA 5 2016 UT App 12

40% of her occupational disease was caused by her work at Fresh 

Market.

¶8 Fresh Market appealed the occupational disease award to 

the Board, arguing that Peterson should not have been allowed 

to pursue an occupational disease claim after the ALJ rejected 

her industrial accident claim based on the same injury. The 

Board rejected Fresh Market’s arguments and concluded that

Peterson’s occupational disease claim was a permissible 

amendment. However, the Board concluded that Peterson’s 

injury could not be characterized as an occupational disease,

because her shoulder condition had been asymptomatic for 

many years and the injury was an acute injury that occurred 

when Peterson lifted the tray of cakes on October 5, 2011.

¶9 Analyzing Peterson’s claim as one for industrial accident 

benefits, the Board concluded that Peterson was required to 

meet the Allen ‚unusual or extraordinary exertion‛ test because 

a preexisting condition contributed to her injury. The Board 

characterized the mechanism of Peterson’s injury as ‚lifting a 

16.5-pound tray and turning to place it on a table.‛ The Board 

concluded that this exertion was not unusual or extraordinary 

and that Peterson had therefore not shown legal causation under 

Allen. Because Peterson had not shown legal causation, the 

Board denied Peterson’s industrial accident claim. One Board 

member dissented, arguing that the Allen test should not apply 

under the circumstances but that if Allen did bar Peterson’s 

industrial accident claim, she should be able to receive benefits 

on her occupational disease claim.

¶10 Peterson now seeks judicial review, raising three 

arguments. First, she argues that the Allen test should not apply 

to her industrial accident claim, because her employment at 

Fresh Market contributed more to her preexisting condition than 

either her prior work history or personal factors. Second, she 

argues that if the Allen test does apply, her injury satisfied that 

test because it resulted from unusual and extraordinary exertion. 
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20141063-CA 6 2016 UT App 12

Third, she argues that if her industrial accident claim fails, she is 

entitled to compensation under her occupational disease theory.

¶11 We need not address Peterson’s first and third arguments,

because we conclude that she has established legal causation of 

her injury under the more-stringent Allen test. Thus, she is 

entitled to industrial accident benefits regardless of whether 

Allen applies. And because Peterson is entitled to compensation 

under her industrial accident theory, we need not determine

whether she would also be entitled to occupational disease 

benefits on the facts presented.4

¶12 The Allen test for legal causation examines ‚*w+hether an 

injury arose out of or in the course of employment . . . where the 

employee brings to the workplace a personal element of risk 

such as a preexisting condition.‛ Allen v. Industrial Comm’n, 729 

P.2d 15, 25 (Utah 1986). ‚Just because a person suffers a 

preexisting condition, he or she is not disqualified from 

obtaining compensation.‛ Id. However,

[t]o meet the legal causation requirement, a 

claimant with a preexisting condition must show 

that the employment contributed something 

substantial to increase the risk he already faced in 

everyday life because of his condition. This 

additional element of risk in the workplace is usually 

supplied by an exertion greater than that undertaken in 

normal, everyday life. This extra exertion serves to 

offset the preexisting condition of the employee as 

a likely cause of the injury, thereby eliminating 

claims for impairments resulting from a personal 

risk rather than exertions at work.

 

4. Peterson makes no claim that she is entitled to both industrial 

accident benefits and occupational disease benefits.
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Id. (emphasis added). ‚Thus, where the claimant suffers from a 

preexisting condition which contributes to the injury, an unusual 

or extraordinary exertion is required to prove legal causation.‛ 

Id. at 26.

¶13 Our analysis of Peterson’s injury under the Allen test

‚involves two steps: first, we must characterize the employmentrelated activity that precipitated [her] injury, taking into account 

the totality of the circumstances; and second, we must determine 

whether this activity is objectively unusual or extraordinary.‛ 

Murray v. Labor Comm’n, 2013 UT 38, ¶ 48, 308 P.3d 461. The first 

step ‚is a matter of fact,‛ but ‚the parties in this case do not 

dispute the circumstances surrounding *Peterson’s+ accident.‛ 

See id. ¶ 49. Thus, we need only determine whether Peterson’s 

activity when she was injured—twisting and reaching behind 

herself with her extended right arm to place her palm under a 

sixteen-pound cake tray to lift and move it from a shoulderheight rack to a mid-chest height table—is ‚objectively unusual 

or extraordinary.‛ Id. ¶ 48. We make this determination giving 

no deference to the Board’s conclusion. See id. ¶ 40 

(‚‘*U+nusualness’ . . . is an objective legal standard that we are in 

a better position to analyze than the [Board].‛).

¶14 ‚Utah courts have deemed employment activities to be 

‘unusual’ or ‘extraordinary’ when they require an employee to 

endure jumping, lifting great weight, or repetition.‛ Id. ¶ 51. 

Peterson’s injury was not caused by any one of these factors in 

isolation. The injury did not involve jumping. It also did not 

involve lifting an amount of weight that would, standing alone, 

satisfy Allen because of its magnitude. Compare Crosland v. 

Industrial Comm’n, 828 P.2d 528, 529, 530 n.3 (Utah Ct. App. 1992)

(concluding that moving a two-hundred-pound sign qualified as 

an unusual activity), with Allen, 729 P.2d at 26 n.8 (‚‘[T]he usual 

wear and tear of life . . . certainly includes lifting objects 

weighing 20 pounds such as bags of golf clubs, minnow pails, 

and step ladders.’‛ (quoting Arthur Larson, Workmen's 

Compensation § 38.83, at 7-280-81 (1986) (footnotes omitted))). 
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20141063-CA 8 2016 UT App 12

And it did not involve the kind of constant repetition that has 

previously served to show legal causation under Allen.

5 See

Stouffer Foods Corp. v. Industrial Comm’n, 801 P.2d 179, 183 (Utah 

Ct. App. 1990) (concluding that ‚applying repeated or constant 

pressure‛ to the grips of high-pressure, gasoline-type hoses is

not a ‚typical non-employment activity‛).

¶15 However, ‚in determining whether the employment 

activity that precipitated *Peterson’s+ injury was ‘unusual’ under 

Allen, we must consider the totality of the circumstances.‛ See

Murray, 2013 UT 38, ¶ 47. Although Peterson was not lifting a 

great amount of weight when she was injured, it was a 

significant amount of weight to lift in the awkward manner that 

Peterson lifted it. We have, in the past, characterized the lifting 

of relatively little weight as unusual or extraordinary exertion 

when the manner in which the weight was lifted was unusual or 

awkward. See American Roofing Co. v. Industrial Comm’n, 752 P.2d 

912, 915 (Utah Ct. App. 1988) (upholding a finding of unusual or 

extraordinary activity based on ‚the weight [lifted], together 

with the manner in which [the employee] lifted the bucket and the fact 

that the bucket snagged‛ (emphasis added)).

¶16 In American Roofing Co. v. Industrial Commission, 752 P.2d 

912 (Utah Ct. App. 1988), the claimant ‚attempted to unload a 

thirty pound bucket of debris out of his truck‛ by ‚lean*ing+ over 

the bed and lift*ing+ the bucket.‛ Id. at 913. We have no difficulty 

concluding that Peterson similarly engaged in unusual or 

extraordinary exertion when she reached behind her with her 

arm extended ‚like a waiter,‛ placed her palm under the tray, 

 

5. There is some suggestion in the record that Peterson regularly 

removed cake trays from the rack and moved them to her work 

table. However, the record does not indicate the frequency of 

such activity, nor does it indicate that Peterson ordinarily 

transferred the trays with the same extended-arm technique that 

resulted in her October 5, 2011 injury.
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lifted the cake tray from shoulder height, and returned forward 

while lowering the tray to her work table with her supinated and 

extended arm. In both instances, the unusual and awkward 

manner in which the employee lifted an otherwise-manageable 

amount of weight resulted in an injury. Looking at the totality of 

the circumstances of Peterson’s injury, we are satisfied that her 

lifting of the sixteen-pound cake tray in the peculiar manner that 

she did ‚contributed something substantial to increase the risk 

[she] already faced in everyday life because of [her preexisting] 

condition.‛

6 See Allen, 729 P.2d at 25.

¶17 We conclude that Peterson’s industrial accident resulted 

from unusual or extraordinary exertion and that Peterson has 

therefore established that her Fresh Market employment was the

legal cause of her injury, regardless of her preexisting shoulder 

condition. We therefore set aside the Board’s order and return 

this matter to the Labor Commission for a determination and 

award of industrial accident benefits.

 

6. The parties have not identified any ordinary life activity that 

would necessitate lifting and moving such a weight in a similar 

manner. When asked to identify such an activity at oral 

argument, Fresh Market’s counsel suggested that Peterson’s 

motion was similar to removing carry-on luggage from an 

overhead bin on an airplane. The analogy is not without its 

appeal. Carry-on luggage can certainly weigh sixteen pounds, 

and retrieving luggage from overhead bins is an ordinary 

activity. However, people do not ordinarily reach directly 

behind themselves, palm up, with an extended arm, and attempt 

to retrieve luggage by carrying it on their palm. Although such 

an exertion could conceivably occur in day-to-day life, it would 

not be usual or ordinary.