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Rueda v. Utah Labor Commission

Supreme Court of Utah

August 31, 2017

Genoveva Rueda, Appellee,
v.
Utah Labor Commission, JBS USA LLC, American Zurich Insurance Co., and Zurich American Insurance Co., Appellants.

         On Certification from the Utah Court of Appeals

          Loren M. Lambert, Midvale, for appellee

          Jaceson R. Maughan, Salt Lake City, for appellant Utah Labor Commission Mark R. Sumsion, Cody G. Kesler, Salt Lake City, for appellants JBS USA LLC, American Zurich Insurance Co., and Zurich American Insurance Co.

          Justice Himonas authored an opinion, in which Justice Pearce joined.

          Chief Justice Durrant authored an opinion, in which Justice Durham joined.

          Associate Chief Justice Lee authored an opinion. [*]

          OPINION

          Himonas, Justice

          INTRODUCTION

         ¶ 1 We confront the effect of the 1991 amendments to the Occupational Disease Act, Utah Code § 34A-3-101 to -113, on the Workers' Compensation Act, id. § 34A-2-101 to -905. Lamentably, we are divided on how to square the acts and are left with a splintered opinion in which Justice Pearce and I would affirm in part and reverse in part the final order of the Labor Commission, Chief Justice Durrant and Justice Durham would affirm, and Associate Chief Justice Lee would vacate and remand. The result is that the order stands as issued.[1]

         ¶ 2 The facts in this case concern Genoveva Rueda, who claimed workers' compensation benefits against her employer, JBS USA, for injuries she sustained while working in its meat processing plant from 2007 to 2009. Initially, JBS USA and its insurers, American Zurich Insurance and Zurich American Insurance, (collectively, JBS) paid Ms. Rueda's benefits. But in 2012 they asked for a medical review to determine any further liability. After this review, JBS determined that either it was no longer liable to Ms. Rueda or "Ms. Rueda's condition, while connected to the employment, did not constitute a compensable 'accident' under the Workers' Compensation Act, but was instead an occupational disease under the . . . Occupational Disease Act." Ms. Rueda petitioned an administrative law judge (ALJ) on the matter. The ALJ found in favor of Ms. Rueda, concluding that JBS was subject to ongoing liability for her injuries, which were caused by a workplace accident under a theory of "cumulative trauma." JBS petitioned for review of this decision to the Labor Commission, which upheld the decision of the ALJ in its final order. That order is before us on proper appeal by JBS.

         ¶ 3 With an eye trained on our longstanding precedent, I would affirm in part and reverse in part. The majority of my colleagues, however, based on no relevant changes to the Workers' Compensation Act and only minor, twenty-six-year-old amendments to the Occupational Disease Act, would now fundamentally adjust the scope of both acts. While I certainly understand their urge to bring clarity to these muddy waters, and while I also share many of their policy concerns, I think we forget the wisdom behind Justice Scalia's aphorism that legislative bodies do not "hide elephants in mouseholes" and, in so forgetting, overstep our authority by making sweeping changes. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001).

         ¶ 4 I reject this approach and tackle the questions presented by this matter as set forth below. First, I address JBS's contention that the 1991 amendments to the Occupational Disease Act abrogated the "cumulative trauma" theory of injury by accident under the Workers' Compensation Act. I conclude that they did not.[2]

         ¶ 5 Second, I address the challenge by Ms. Rueda that her injury was improperly classified as the result of "cumulative trauma" rather than a series of distinct accidents. I conclude that there was substantial evidence to support the Labor Commission's findings that Ms. Rueda suffered a medical condition affecting her right arm as the result of gradual and consistent exposure to the regular duties of her employment. And, thus, I would affirm the finding of the Labor Commission that Ms. Rueda's injury was caused by "cumulative trauma."

         ¶ 6 Third, I conclude that these findings, when viewed against the legal backdrop of the proper construction of the interplay between the Occupational Disease Act and the Workers' Compensation Act, result in a determination that Ms. Rueda's condition is an occupational disease. Thus, in my view, we should reverse the Labor Commission's determination that Ms. Rueda's injury was by accident.

         BACKGROUND

         ¶ 7 Ms. Rueda began working at JBS USA's meat processing plant on July 23, 2007. She first worked as a mock tender trimmer in the fabrication department, which required her to repeatedly remove meat from a conveyor belt with a hook and trim the meat with a knife. Then, for a short time, Ms. Rueda worked in the "hot boning area, " where she used a knife to "poke into the head of the tender" and "clip[ped] the tender to drop out of position." She also spent several weeks working as a fat trimmer, "trimming fat and lean with a straight knife."

         ¶ 8 As early as August 2007, Ms. Rueda began to experience "right upper extremity . . . symptoms, including numbness, pain, wrist discomfort, elbow pain, forearm discomfort, and right shoulder symptoms." She also experienced swelling in her right hand. The swelling in her hand gradually worsened over time and spread up her right arm; the other pains and symptoms likewise persisted and progressed throughout her employment at the plant.

         ¶ 9 On January 1, 2008, Ms. Rueda was trimming mock tender and pulled product with a hook in order to trim it when she "felt pain on the left sides of her neck, shoulder and low back." Afterward, she was diagnosed with neck, shoulder, and back strain and began physical therapy in February 2008. On April 28 and June 3, 2008, Ms. Rueda "reported right medial elbow soreness and right shoulder and arm pain." She continued receiving physical therapy until late November 2008.

         ¶ 10 In February 2009, Ms. Rueda was moved to a new position as a meat trimmer. She would use her left hand to position the neck bone and use her right hand to remove the meat from the bone with a mechanized knife. The physical demands of the position were "in the [l]ight work category with frequent lifting up to 20 pounds and carrying objects up to 10 pounds, reaching with the right [arm] occasionally and the left arm frequently, handling with the right hand frequently and the left hand frequently[, ] and standing six to eight hours."

         ¶ 11 On May 11, 2009, Ms. Rueda filed another injury report. On that day, she felt pain in her right shoulder and in her right hand as she was removing meat from bones and throwing the bones onto trays. She "began to hear [her] right shoulder make a popping noise that she had not heard before." Ms. Rueda reported the injury and was placed on light work duty, which consisted of using a small hand tool to count pieces of product as they fell into a box.

         ¶ 12 In June and July 2009, Ms. Rueda received physical therapy for her ailments. An MRI scan revealed a "partial thickness tear through the supraspinatus and infraspinatus portions of the rotator cuff." Ms. Rueda underwent surgery on her right shoulder in October 2009 and returned to work the next month. She was assigned to light work duty but was released from work a week later "due to ongoing right arm pain" and did not return to work after that.

         ¶ 13 On January 11, 2010, a doctor opined that Ms. Rueda's right shoulder condition was "medically stable." He assessed "a permanent impairment rating of 4% whole person for [Ms. Rueda's] right shoulder condition of which he apportioned 80% to the industrial accident, or 3% whole person, and 20% to non-industrial." The following day, January 12, 2010, Ms. Rueda voluntarily quit her job.

         ¶ 14 After leaving JBS USA, Ms. Rueda continued undergoing medical evaluations and treatment for her right upper extremity symptoms for a couple of years. In 2012, JBS requested an orthopedic evaluation to determine its additional liability, if any, for Ms. Rueda's condition. After the evaluation, JBS maintained that it was no longer liable for Ms. Rueda's medical expenses and that it had paid Ms. Rueda all that was required under the law. Alternatively, JBS contended that Ms. Rueda's injury was the result of an occupational disease, rather than an industrial accident, and that any benefits should be apportioned in accordance with the medical evidence. Ms. Rueda then filed an Application for Hearing with the Adjudication Division of the Utah Labor Commission, claiming entitlement to additional workers' compensation benefits.

         ¶ 15 The dispute was heard before an ALJ, who determined that there was a conflict of medical opinion regarding Ms. Rueda's need for ongoing treatment. The ALJ directed the factual medical questions to a Labor Commission medical panel, which issued a report on May 16, 2013. Neither party objected to the medical panel's report, and it was admitted into evidence. Based on the earlier hearing and the medical panel's report, the ALJ ruled in favor of Ms. Rueda, concluding that Ms. Rueda needed further treatment for her condition resulting from her "industrial accident, " and ordered JBS to provide Ms. Rueda additional workers' compensation benefits.

         ¶ 16 In response to the ALJ's order, JBS asked the Labor Commission for review. The Labor Commission affirmed the ALJ's order, and JBS subsequently filed a petition to review the Labor Commission's decision with the Utah Court of Appeals under the Utah Administrative Procedures Act. Utah Code § 63G-4-403. The court of appeals certified the case for transfer to this court. We have jurisdiction under Utah Code section 78A-3-102(3)(b).

         STANDARDS OF REVIEW

         ¶ 17 Appellate courts have authority to review final agency adjudications on the grounds enumerated in the Utah Administrative Procedures Act. Utah Code § 63G-4-403. A court may grant relief if "it determines that a person seeking judicial review has been substantially prejudiced" because "the agency has erroneously interpreted or applied the law" or "the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court." Id. § 63G-4-403(4)(d), (g).

         ¶ 18 The first issue in this case is the Labor Commission's interpretation of the scope of coverage under the Workers' Compensation Act and the Occupational Disease Act. Subsection (4)(d) of Utah Code section 63G-4-403 does not imply a standard of review, and we therefore turn to our traditional method for determining the proper standard by reviewing our case law. Murray v. Utah Labor Comm'n, 2013 UT 38, ¶ 21, 308 P.3d 461. The Labor Commission's "interpretation of a statute is a question of law, which we review for correctness." Miller v. Utah Dep't of Transp., 2012 UT 54, ¶ 23, 285 P.3d 1208 (citation omitted). Thus, we review the Labor Commission's interpretation of the Occupational Disease Act and the Workers' Compensation Act for correctness.

         ¶ 19 The second issue is whether Ms. Rueda's injury was the result of "cumulative trauma, " as the Labor Commission found, rather than the result of a series of distinct accidents. The grounds in section 63G-4-403 "do[] not expressly mandate the standards of review [courts] must employ when reviewing [agency] actions." Murray, 2013 UT 38, ¶ 18. However, we have recognized that subsection (4)(g) implies a standard of review, permitting the court to grant relief "only after reviewing the agency's determination of fact for a lack of substantial evidence." Id. ¶ 19. Therefore, we review the agency's findings of fact on whether Ms. Rueda's injury was the result of "cumulative trauma" for substantial evidence.

         ¶ 20 Finally, JBS contends that the Labor Commission misapplied the Workers' Compensation Act to the facts of Ms. Rueda's case. This claim also falls under section 63G-4-403(4)(d), and we once again turn to our traditional method for determining the proper standard of review by reviewing our case law. Id. ¶ 21. Since JBS's claim "involv[es] application of a legal standard to a set of facts unique to a particular case, " it is a mixed question of law and fact. In re Adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382. In such situations, our standard of review is "sometimes deferential and sometimes not." Id. Whether we grant deference to the administrative body's findings depends on

(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court's application of the legal rule relies on "facts" observed by the trial judge, such as a witness's appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting [deference] to trial courts.

Murray, 2013 UT 38, ¶ 36 (alteration in original) (citation omitted).

         ¶ 21 Here, we determine that the Labor Commission's decision to classify Ms. Rueda's injury as a compensable injury by accident under the Workers' Compensation Act is entitled to non-deferential review. The Labor Commission's determination that Ms. Rueda's facts satisfy the legal requirements of injury by accident under the Workers' Compensation Act turns on the legal effect of the established facts regarding the circumstances surrounding her injury. Therefore, "the ultimate question is the legal effect of the facts rather than witness credibility or demeanor." Id. ¶ 40. Thus "we are in a better position to analyze [this question] than the [Labor] Commission." Id.

         ANALYSIS

         ¶ 22 First, JBS argues that the 1991 amendments to the Occupational Disease Act should be read to have expanded its application. Furthermore, JBS argues that this expansion comes at the expense of the Workers' Compensation Act, by abrogating the "cumulative trauma" theory of injury by accident developed by the courts under the Workers' Compensation Act. I decline the invitation to completely abandon the "cumulative trauma" theory of injury by accident, and clarify the effect of the 1991 Occupational Disease Act amendments on workers' compensation in Utah.

         ¶ 23 Second, I reject Ms. Rueda's contention that the Labor Commission made an erroneous factual finding when it found that Ms. Rueda's injury was caused by "cumulative trauma" and not by separate, distinct accidents.

         ¶ 24 Finally, I agree with JBS that the Labor Commission misapplied the Workers' Compensation Act to Ms. Rueda's case. I would hold that Ms. Rueda's injury is an occupational disease under the Occupational Disease Act. Therefore, I would reverse the Labor Commission on this point and remand for further proceedings consistent with this opinion.

         I. CLASSIFICATION OF WORKPLACE HARM UNDER EITHER THE WORKERS' COMPENSATION ACT OR THE OCCUPATIONAL DISEASE ACT

         ¶ 25 JBS contends that this case is an opportunity for the court to create a more "common sense" demarcation between injuries by accident and occupational diseases by holding that proof of "cumulative trauma" can only establish an occupational disease. Ms. Rueda counters that there is no reason to upset the status quo between the two. I opt for a middle path. While I decline to abolish the "cumulative trauma" theory of injury by accident, I would clarify the state of the law surrounding occupational diseases and injuries by accident.

         ¶ 26 Utah's workers' compensation scheme is outlined by two separate but related chapters of the Utah Labor Code: the Occupational Disease Act and the Workers' Compensation Act.

         ¶ 27 Prior to the enactment of the Occupational Disease Act in 1941, workers who developed an occupational disease had to seek recovery under a theory of negligence by their employer because the Workers' Compensation Act did not cover occupational diseases. See Masich v. U.S. Smelting, Ref. & Mining Co., 191 P.2d 612, 615 (Utah 1948); see also Young v. Salt Lake City, 90 P.2d 174, 176-77 (Utah 1939). The passage of the Occupational Disease Act brought occupational diseases into the realm of the workers' compensation system. See Masich, 191 P.2d at 615. Much of the wording of the Occupational Disease Act was taken from the Workers' Compensation Act, and this court noted that "the Occupational Disease Act . . . is closely allied to the Work[ers'] Compensation Act." Id.

         ¶ 28 However, the original Occupational Disease Act had limited application in the scheme of workers' compensation because it provided a remedy for only twenty-seven specifically enumerated diseases arising out of a worker's employment. Utah Code § 42-1a-28 (1943). Most of these enumerated diseases consisted of poisoning caused by various compounds. Id. § 42-1a-28(3)-(21). The enumerated diseases also included conditions like "[s]ynovitis, or tenosynovitis, or bursitis, or cellulitis, of the wrist, elbow, knee, or hand, due to continual pressure or friction or to repeated trauma or vibration of tools." Id. § 42-1a-28(25).

         ¶ 29 The Utah Legislature amended the Occupational Disease Act in 1949 to include a provision expanding the Act's coverage. See Utah Code § 35-2-27(28) (1953). In addition to providing coverage for the twenty-seven enumerated diseases, the Occupational Disease Act also covered other diseases and injuries that met six factors. Id.[3] These factors required that the disease or injury be related to and caused by employment, as opposed to a disease that was incident to ordinary life. Id.

         ¶ 30 In 1991, the legislature again amended the Occupational Disease Act. Now, the Occupational Disease Act provides remedies for "any disease or illness that arises out of and in the course of employment and is medically caused or aggravated by that employment." Utah Code § 34A-3-103 (emphasis added).[4]

         ¶ 31 On the other end of the workers' compensation spectrum lies the Workers' Compensation Act. The Workers' Compensation Act, originally passed in 1917, compensates workers for accidental injuries and excluded "disease[s] except as [they] shall result from the injury." Compiled Laws of Utah § 49-3112(5) (1917). The Workers' Compensation Act governs compensation for injuries caused "by accident arising out of and in the course of the employee's employment." Utah Code § 34A-2-401(1). The statute does not define "accident."[5]

         ¶ 32 Cognizant of the need to distinguish injuries by accident from occupational diseases and because this distinction is at issue in this case, I proceed to provide guidance for determining whether an injury is by accident under the Workers' Compensation Act or an occupational disease under the Occupational Disease Act.

          ¶ 33 "When interpreting statutes, our primary goal is to evince the true intent and purpose of the Legislature. We discern legislative intent and purpose by first looking to the best evidence of its meaning, which is the plain language of the statute itself." State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d 1276 (citation omitted) (internal quotation marks omitted). However, "[t]he legislature is entitled to invoke specialized legal terms that carry an extraordinary meaning. And when it does so we credit the legal term of art, not the common understanding of the words." State v. Canton, 2013 UT 44, ¶ 28, 308 P.3d 517.

         ¶ 34 In the present case, I cannot evince the legislature's "true intent and purpose" for injury classification from the ordinary meaning of "injury by accident" or "occupational disease." These terms are legal terms of art, deeply embedded in more than a century of precedent, which have taken on a specialized meaning in the context of workers' compensation schemes.[6] Therefore, to properly understand the meanings of "injury by accident" and "occupational disease, " I believe we must undertake "a distinctive analysis and tracking of pertinent precedents." Johannesen v. N.Y.C. Dep't of Hous. Pres. & Dev., 638 N.E.2d 981, 984 (N.Y. 1994). To this end, I examine the legal history of the phrases "accident, " "injury by accident, " and "occupational disease, " as well as accompanying case law, to derive the meanings of the legal terms of art at issue in this case.

         ¶ 35 In Utah, as well as the majority of other jurisdictions, the unexpectedness of the accident and the definiteness of the timing of the injury's occurrence have been the most important points of distinction in determining whether an injury resulted from an accident or was an occupational disease. See 3 Arthur Larson et al., Larson's Workers' Compensation Law § 42.02 (2017). The term "by accident" as used in the Utah Workers' Compensation Act was first discussed in Tintic Milling Co. v. Industrial Commission, 206 P. 278 (Utah 1922). After Tintic, Utah courts developed two lines of cases that defined "accident" differently: one required proof of an unusual event; the other, represented by Carling v. Industrial Commission, 399 P.2d 202 (Utah 1965), did not require such proof. See Allen v. Indus. Comm'n, 729 P.2d 15, 21-22 (Utah 1986). In Allen, this court renounced the unusual-event line of cases, which had confused the definition of accident, and reaffirmed the broad definition of accident espoused in Carling. Id.[7]

          ¶ 36 Under Carling, the term "accident" "connotes an unanticipated, unintended occurrence different from what would normally be expected to occur in the usual course of events." 399 P.2d at 203. But an injury by accident "is not necessarily restricted to some single incident which happened suddenly at one particular time and does not preclude the possibility that due to exertion, stress or other repetitive cause, a climax might be reached in such manner as to properly fall within the definition of accident." Id. Thus, in Carling, this court recognized that "cumulative trauma" or "repetitive trauma" can give rise to a claim under the Workers' Compensation Act.[8] Carling, however, cautioned that courts must still be careful to distinguish such accidental injuries from occupational diseases, which it characterized as "gradually developing conditions." Id.

         ¶ 37 Earlier Utah case law defined occupational disease in a similar way.

An accident . . . is distinguished from an occupational disease, in that it arises by some definite event, the date of which can be fixed with certainty, but which cannot be so fixed in the case of occupational diseases. . . . We are therefore of the opinion that the term occupational disease must be restricted to a disease that is not only incident to an occupation, but the natural, usual, and ordinary result thereof; and held not to include one occasioned by accident or misadventure.

Young, 90 P.2d at 176 (internal quotations marks omitted); see also Tintic, 206 P. at 281 ("If the injury is incurred gradually in the course of the employment, and because thereof, and there is no specific event or occurrence known as the starting point, it is held to be an occupational disease, and not an injury resulting from accident.").

         ¶ 38 These definitions track the definitions of "accident" and "occupational disease" in other jurisdictions and legal works.[9]

          However, such "[d]efinitions . . . should always be checked against the purpose for which they were uttered." 4 Arthur Larson et al., Larson's Workers' Compensation Law § 52.03[1] (2017). One early purpose of defining "occupational disease" was to distinguish occupational diseases from accidental injuries. The usual result of this distinction was to prevent the injured worker from receiving workers' compensation because "'occupational disease' was synonymous with the verdict 'noncompensable.'" Id. With the advent of occupational disease acts in the realm of workers' compensation, this context took on less importance. Id. This is because in many jurisdictions "it [became] . . . immaterial which category applie[d]" as the coverage offered for injuries by accidents and occupational diseases became roughly the same. Id. § 50.06. Therefore, the distinctions between the definitions of accident and occupational disease became less important in the case law because the categorization of the injury often made little or no difference to the compensation the employee was to receive for his or her injury. Id. § 52.03[1]. This was the case in Utah with respect to the scope of coverage until our decision in Dale T. Smith & Sons v. Utah Labor Commission, 2009 UT 19, 218 P.3d 580, where we held that the apportionment provision of the Occupational Disease Act applies to all forms of compensation under that Act, including medical benefits.[10] Now, because the Workers' Compensation Act has no similar apportionment provision, the question of whether an injury qualifies as by accident or as an "occupational disease" can matter greatly. The distinction means that the employee will be entitled to receive more or less compensation depending on which act is applied and that the employer (or its insurer) will be obligated to pay more or less compensation depending on how the injury is classified.[11]

          ¶ 39 Today, I would make clear that in keeping with this court's long-standing precedent, we should view injuries by accident and occupational disease as existing along a "spectrum" with extreme examples of workplace accidents on one end and similarly extreme examples of occupational diseases on the other. See Smith's Food & Drug, Inc. v. Labor Comm'n, 2011 UT App 67, ¶ 14, 250 P.3d 1008. I would also make clear that when characterizing an impairment along this spectrum, we should take into consideration the unexpectedness of the accident as well as the definiteness as to the occurrence of the injury. When an accident is unexpected and one can trace the occurrence of the injury to a definite time, then "one has the clearest example of a typical industrial accident . . . . At the other extreme, if [the unexpectedness and definiteness] elements are missing, one sees the typical occupational disease." 3 Arthur Larson et al., Larson's Workers' Compensation Law § 42.02 (2017). And under our statutory scheme, the same injury cannot be both a workplace accident and an occupational disease at the same time. See Utah Code § 34A-2-102(1)(j)(ii) ("'Personal injury by accident arising out of and in the course of employment' does not include a disease, except as the disease results from the injury."). Consequently, it is at the center of the spectrum where the battle between classifying an injury as an occupational disease or as a workplace accident is fought.

         ¶ 40 I recognize that in the past we have spoken loosely regarding the classification of an accidental injury under the workers' compensation scheme. Therefore, I would clarify that definiteness of time as to the occurrence of (1) the cause of the injury and (2) the resultant injury are important factors in determining the categorization of a workplace injury. But the primary factor by which we should judge whether an injury results from an accident is whether the cause of the injury or result of the occurrence is unexpected or unintended. See 3 Arthur Larson et al., Larson's Workers' Compensation Law § 42.02 (2017); see also Allen, 729 P.2d at 22.[12]

         ¶ 41 To determine if an occurrence satisfies the unexpectedness factor of the test, either the cause of the injury or the result of the occurrence must be unexpected. To determine if the cause of an injury is unexpected, one will ordinarily look to whether "something . . . broke, or interjected itself into, the usual course of the performance of the occupation." Young, 90 P.2d at 177. In other words, we should look to whether a mishap occurred. A slip and fall is a classic example of an unexpected cause. Often, however, the real controversy in this area of law is whether the result of an occurrence was unexpected, and thus an injury by accident.[13] To determine whether the result of an occurrence is unexpected, one ordinarily looks to whether there was an "unexpected internal failure of [an employee's] system to function normally." Purity Biscuit Co. v. Indus. Comm'n, 201 P.2d 961, 966 (Utah 1949).

         ¶ 42 At the opposite end of the spectrum are occupational diseases, which are not unexpected. Since occupational diseases are those "medically caused or aggravated by that employment, " Utah Code § 34A-3-103, they are not unexpected in connection with an employee's work.[14] In addition, an occupational disease does not typically arise from a definite event, the time and place of which can be exactly pinpointed. As far back as Tintic, we recognized that occupational diseases typically are "incurred gradually." 206 P. at 281. Carling reaffirmed that notion, noting that workplace accidents "must be distinguished from gradually developing conditions which are classified as occupational diseases." 399 P.2d at 203. And Allen reiterated that distinction, stating that an injury by accident would have no evidence "that it developed gradually as with an occupational disease." 729 P.2d at 27. But not every occupational disease must occur gradually, as expectedness is our primary consideration in this context. This approach is consistent with the original version of the Occupational Disease Act. Although some of the twenty-seven enumerated diseases had "rapid harmful effects, " they were not contrary to the term of art understanding of occupational disease, as Chief Justice Durrant claims, because they were still not unexpected. Infra ¶ 116.

         ¶ 43 I note that there is criticism regarding the consideration of the definiteness of time as a factor when classifying an injury. See 3 Arthur Larson et al., Larson's Workers' Compensation Law § 42.02 (2017). This criticism, as both Chief Justice Durrant and Justice Lee have pointed out, is not unfounded-I readily concede that the legislature can and should draw clearer lines in the workers' compensation context. And I agree with many of my colleagues' policy arguments. But in the absence of any statutory change beyond the streamlining accomplished by the 1991 amendments, see infra ¶¶ 45-48, we should adhere to our case law on this point. And the definiteness of time factor is one that is entrenched in our case law. See, e.g., Carling, 399 P.2d at 203 ("However, such an occurrence must be distinguished from gradually developing conditions which are classified as occupational diseases . . . ."); see also Allen, 729 P.2d at 27 (distinguishing an injury by accident where there was "no evidence which indicates that [the employee's] injury was predictable or that it developed gradually as with an occupational disease"); Tintic, 206 P. at 281 ("What is termed an accident must be something . . . definitely located as to time and place. If the injury is incurred gradually . . . and there is no specific event or occurrence known as the starting point, it is held to be an occupational disease . . . ."); Smith's Food & Drug, 2011 UT App 67, ¶ 13 ("The period of time in which [Claimant] experienced periodic shoulder pain was short until the pain evolved into chronic pain thereafter." (alteration in original)). In reviewing our case law, I conclude that our courts often look to the definiteness of time factor to help inform the "unexpectedness" inquiry in terms of whether a mishap occurred. This is why our cases have stated that "[t]he basic and indispensable ingredient of 'accident' is unexpectedness, " while also looking at the definiteness of time as to the occurrence or onset of an injury. Allen, 729 P.2d at 22 (citation omitted). I believe the Chief Justice's criticism that adopting a test that includes definiteness of time as a factor leads to an "inequitable standard" is true when the length of time is the sole basis for determining whether workplace harm is an injury by accident or an occupational disease. See infra ¶ 89. In Utah, however, the definiteness of time is a secondary factor in determining how to classify workplace harm, the primary factor being unexpectedness of cause of the injury or unexpectedness of the resultant injury. Indeed, neither JBS nor Ms. Rueda argue against inclusion of the definiteness of time as a factor in the test, and, in fact, JBS appears to argue that the definiteness of time should be the deciding factor in classifying a workplace harm. See infra ¶ 65 n.19. Given the prevalent inclusion of the definiteness of time factor in our case law, I am determinedly of the opinion that we are in no position to eliminate it, either wholly or in substantial part, from the analysis in classifying workplace harm based on a relatively minor change to the statutory scheme.

         ¶ 44 And it is the role of the definiteness factor that presents my principal point of departure from Justice Lee's opinion. Primarily for policy reasons, Justice Lee would demote definiteness to "only circumstantially relevant to the 'unexpectedness' of a given causal event." Infra ¶ 153. But this treatment represents, as I explain throughout my opinion, a substantial shift in our case law that cannot be squared with the legislature's minor 1991 amendments to the Occupational Disease Act. To quote Justice Scalia, legislatures do not "hide elephants in mouseholes" by altering "the fundamental details of a regulatory scheme in vague terms or ancillary provisions." Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001).[15]

         ¶ 45 Chief Justice Durrant's approach does even greater violence to the elephants-in-mouseholes doctrine. First, the Chief Justice applies inconsistent interpretive principles to the phrase "injury by accident" by arguing for a plain language interpretation of "injury" (and "disease"), but a term of art interpretation of "by accident." Second, wielding this novel interpretative approach, he proceeds to view the amendments to the Occupational Disease Act as creating a sea change in decades' worth of workers' compensation law.

         ¶ 46 I find Chief Justice Durrant's position commendable in its attempt to bring clarity to an admittedly muddled pair of statutory schemes. And I agree with the Chief Justice (and Associate Chief Justice Lee) that this is an area that the legislature should revisit. But in the absence of legislative clarification, I cannot agree with the Chief Justice's approach for two reasons. First, a plain language analysis is not appropriate where the terms "injury by accident" and "occupational disease" have developed specialized meanings and have not been undercut by statutory changes. Second, as pointed out above, there is no indication that the legislature intended such a massive shift in the scope of both the Workers' Compensation Act and the Occupational Disease Act when it amended the latter in 1991.[16]

         ¶ 47 A term of art approach for both "injury by accident" and "occupational disease" is consistent with principles of statutory interpretation, our case law, and the workers' compensation scheme of the majority of states. Supra ¶ 34 & n.6. Decades of judicial interpretation in workers' compensation cases have "become[] a gloss" on both the Workers' Compensation Act and the Occupational Disease Act. Hackford v. Utah Power & Light Co., 740 P.2d 1281, 1283 (Utah 1987), superseded by statute on other grounds by Utah Code § 30-2-11, as recognized in Benda v. Roman Catholic Bishop of Salt Lake City, 2016 UT 37, ¶ 12, 384 P.3d 207. That gloss becomes, "in effect, part of the statute." Id. The legislature is not operating in a vacuum; where it has not erased that gloss through new definitions, "the subsequent amendments suggest implicit legislative adoption of the judicially created definition." Weyerhaeuser Co. v. Woda, 998 P.2d 226, 230 (Or. Ct. App. 2000). The Weyerhaeuser court recognized that where-as here-the legislature has never provided a definition for "disease, " the occupational disease statute "retains the use of the term 'disease, ' which is a term that has acquired a specific definition that cannot simply be ignored." Id.

         ¶ 48 In fact, even language that predates the Occupational Disease Act's enactment operated to inform the legislature's word choice. Our decisions interpreting the Workers' Compensation Act, a sister statute to the Occupational Disease Act, go back nearly a century, providing key insight for what the term "disease" meant when the legislature enacted the Occupational Disease Act. See Masich, 191 P.2d at 615 ("The intent, purposes and objectives of the Occupational Disease Act, which is closely allied to the Work[ers'] Compensation Act, can be determined by reliance on former interpretations of the Work[ers'] Compensation Act . . . ."); see also Tintic, 206 P. at 280-83 (pre-Occupational Disease Act case discussing "injury by accident" and "disease"). Our cases after the Occupational Disease Act's enactment and the 1949 amendment continued our specialized meaning approach by fleshing out the factors of unexpectedness and timing. See Carling, 399 P.2d at 203 (describing occupational diseases as "gradually developing conditions"); Allen, 729 P.2d at 27 (noting that occupational diseases have the characteristics of being "predictable" and "develop[ing] gradually").

         ¶ 49 Indeed, the legislature never gave "disease" a definition inconsistent with our common-law gloss. Notably, it has never defined "disease" at all. Certainly "nothing in the language of the amended statute or its enactment history suggests that the legislature intended to abandon the [common-law] definition of the term." Weyerhaeuser, 998 P.2d at 229. Chief Justice Durrant himself seems to recognize that following the 1941 enactment of the Occupational Disease Act, our case law has consistently adhered to a term of art definition. See infra ¶ 85 (citing Allen, 729 P.2d at 18, 22). Our continued use of the term of art meanings after the 1941 enactment of the Occupational Disease Act and the 1949 and 1991 amendments is evidence that the legislature had not abandoned the common-law definition. We are not in a position to reject all of our history in this area without a signal that the legislature intended such a sea change. Because the 1991 amendment to the Occupational Disease Act served primarily to simplify the Act and is closely aligned to the 1949 version, I believe we are compelled to continue using the term of art definitions rather than the Chief Justice's plain language approach. Compare Utah Code § 35-2-27(28) (1953) (defining "occupational disease" as "diseases or injuries to health which directly arise as a natural incident of the exposure occasioned by the employment" as long as there is a suitable nexus between the disease and the employment), with Utah Code § 34A-3-103 (2015) ("[A] compensable occupational disease means any disease or illness that arises out of and in the course of employment and is medically caused or aggravated by that employment.").

         ¶ 50 Additionally, Chief Justice Durrant's conclusion that by "any disease" the legislature meant to use an "ordinary" meaning for the term "disease" is based on an incorrect premise. When the legislature adopted the 1991 amendments, the Occupational Disease Act did not have a narrow definition of "disease" based only on the twenty-seven enumerated diseases. Instead, the Occupational Disease Act listed twenty-seven diseases and included a broader provision that provided coverage for any disease that qualified under a six-factor test. When the legislature jettisoned the specific list and adopted what was essentially a simplified version of the six-factor test from the previous version of the Occupational Disease Act, it does not follow that it meant to then abandon the prior term of art meaning of "occupational disease." The Chief Justice's analysis is further complicated by the fact that it adopts a plain language interpretation of "injury" and "disease, " but splits the term "injury by accident" in order to apply a specialized meaning to "by accident." Infra ¶¶ 94-97. This approach contravenes principles of statutory interpretation by splitting a singular phrase into separate parts and applying disparate models of statutory interpretation to each part. See Dist. of Columbia v. Heller, 554 U.S. 570, 586-87 (2008) (rejecting interpretation that would give a literal interpretation to part of "keep and bear arms" and an idiomatic interpretation to another part). We have consistently referred to "injury by accident" as a cohesive phrase. See Specialty Cabinet Co. v. Montoya, 734 P.2d 437, 439 (Utah 1986) (referring to the term "injury by accident" as a whole); Allen, 729 P.2d at 17 (same); Purity Biscuit, 201 P.2d at 968 (referring to "the [singular] term 'injury by accident'"). This phraseology spans centuries, continents, and countless cases.[17]See, e.g., Purity Biscuit, 201 P.2d at 967 ("The English Workmen's Compensation Law was adopted in 1897 . . . [and] provided compensation for 'injury by accident' the same as ours."). We do not "only inquire into individual words and subsections in isolation; our interpretation of a statute requires that each part or section be construed in connection with every other part or section so as to produce a harmonious whole." Anderson v. Bell, 2010 UT 47, ¶ 9, 234 P.3d 1147 (internal quotation marks omitted), superseded on other grounds by Utah Code § 20A-1-306. I therefore disagree with the Chief Justice's application of two different interpretive methods to a singular phrase, and I interpret "injury by accident" as a whole and as a term of art.

         ¶ 51 Chief Justice Durrant criticizes my opinion for focusing on "by accident" rather than first classifying an impairment as an injury. I reject this premise. As I have explained, the term "injury by accident" is a term of art. My opinion restates and explains that term of art. Included in this restatement and explanation is a distinction that is central to the judicial gloss on "injury by accident" and "occupational disease" that the legislature has embraced: the distinction between an ailment brought on by a mishap (an injury by accident) and one medically understood to be caused by a certain kind of work. The Chief Justice is mistaken that I read the concept of a mishap into the term "injury by accident" by focusing only on the phrase "by accident." Instead, I read it into the term by focusing on the judicial gloss that has come to be coextensive with that term's meaning. I also disagree with the Chief Justice's effectively advocating a sweeping change to both the Occupational Disease Act and the Workers' Compensation Act. While the Chief Justice's desire to draw a clear line between injury by accident and occupational disease is a laudable one, I do not believe that it is possible to do so in this context. See 3 Arthur Larson et al., Larson's Workers' Compensation Law § 42.02 (2017). Indeed, the line the Chief Justice wishes to draw would profoundly upset decades of workers' compensation precedent by now stating that any repetitive trauma can be compensated only as an injury by accident. It is too much to imagine that, in amending the Occupational Disease Act in 1991, the legislature intended to effect such a significant change in the workers' compensation arena without indicating such an intent or changing the language of the Workers' Compensation Act.

         ¶ 52 And Chief Justice Durrant's attempt to do so directly contradicts the legislative history. The sponsor of the 1991 amendments to the Occupational Disease Act stated that it was an update needed to "eliminate[] the unnecessary duplication of provisions" and streamline the "confusing" act, which did "not meet the needs of the 1990s." Utah Occupational Disease Act Amendments: Hearing on S.B. 9 Before the House, 1991 Gen. Sess. (statement of Sen. Lane Beattie). Nowhere in the floor votes did any legislator indicate an intention to discard the term of art approach and redraw the lines of compensation in the way the Chief Justice proposes.

         ¶ 53 Such line drawing, while often valuable in the law because it creates clear demarcations and obvious outcomes, inevitably will create winners and losers. The legislature is much better positioned to draw those lines after hearing testimony than we are based upon the case before us. The current "line" between the Workers' Compensation Act and the Occupational Disease Act, while admittedly unclear, is based on factors that have developed in nearly a century of case law. There are weighty reliance issues at play in this area of the law and in the way that these cases have played out over such a long period of time. See Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553 ("Our decisions have identified two broad factors that distinguish between weighty precedents and less weighty ones . . . . The second factor encompasses a variety of considerations, including the age of the precedent . . . and the extent to which people's reliance on the precedent would create injustice or hardship if it were overturned."). The 1991 amendments to the Occupational Disease Act were not an invitation by the legislature for us to step in and overrule a century of precedent, create a new test, and decide who the new "winners" and "losers" will be in the context of workers' compensation.[18]

         ¶ 54 A final problem with Chief Justice Durrant's approach is that it has the perverse implication that a definition that certainly was not aimed at narrowing the definition of an "occupational disease" does exactly that. For example, the Occupational Disease Act consistently listed "bursitis" as an occupational disease until the 1991 amendments. But bursitis does not fit under the Chief Justice's understanding of the ordinary meaning of disease because it does not "result from exposure to environmental hazards and foreign agents, such as bacteria, viruses, other germs, poisons, and toxins, or from inherent biological or genetic defects." Infra ¶ 130. Thus, the Chief Justice is forced to conclude that a clarifying amendment to the Occupational Disease Act that eliminated a specific list of diseases and instead stated simply that the Occupational Disease Act encompasses "any disease" has the effect of removing a previously recognized core disease from its ambit. I cannot accept this.

         ¶ 55 Having clarified the standard for determining whether an injury is by accident or an occupational disease, I proceed to address JBS's contention that the 1991 amendments to the Occupational Disease Act abrogated the "cumulative trauma" theory of injury by accident.

         A. The "Cumulative Trauma" Theory of Injury by Accident

         ¶ 56 The 1991 amendments changed the Occupational Disease Act to provide a remedy for "any disease or illness that arises out of and in the course of employment and is medically caused or aggravated by that employment." Utah Code § 34A-3-103. But that change did not, as JBS argues, abrogate the "cumulative trauma" theory of injury by accident.

         ¶ 57 JBS asks us to abandon the "cumulative trauma" theory of injury by accident as articulated in Carling. See 399 P.2d at 203 (injury by accident "is not necessarily restricted to some single incident which happened suddenly at one particular time"). Instead of that theory, JBS argues that we should adopt what it considers a more "common sense" line of demarcation, namely, that definiteness of time is the sole mechanism by which an injury should be classified either as by accident or as an occupational disease. Such a rule, JBS asserts, would give meaning to the 1991 Occupational Disease Act amendments while reining in the courts' overly broad definition of workplace accident under the Workers' Compensation Act.

         ¶ 58 The "cumulative trauma" theory of injury by accident is established by longstanding precedent, which we will overrule only "for the most compelling reasons." ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65, ¶ 23, 245 P.3d 184 (citation omitted). JBS, as the party asking us "to overturn prior precedent[, ] ha[s] a substantial burden of persuasion." Id. (second alteration in original) (citation omitted). This burden, however, "is not equal[] . . . in all cases." Eldridge, 2015 UT 21, ¶ 22.

Our decisions have identified two broad factors that distinguish between weighty precedents and less weighty ones: (1) the persuasiveness of the authority and reasoning on which the precedent was originally based, and (2) how firmly the precedent has become established in the law since it was handed down. The second factor encompasses a variety of considerations, including the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people's reliance on the precedent would create injustice or hardship if it were overturned.

Id.

         ¶ 59 As discussed below, all of these factors are present in this case, making the "cumulative trauma" theory of injury by accident "weighty precedent[]." Id. And because JBS has not met its heavy burden of persuading us to abandon this precedent, I decline the invitation to do so.

         ¶ 60 The first part of the test for departing from precedent requires us to consider "the persuasiveness of the authority and reasoning on which the precedent was originally based." Id. JBS does not argue that the "cumulative trauma" theory of injury by accident was originally erroneous. Indeed, the "cumulative trauma" theory of injury by accident, or similar "repeated trauma" or "repetitive trauma" theories appear to be well-recognized in the law. 4 Arthur Larson et al., Larson's Workers' Compensation Law § 50.04 (2017) (The "repeated-trauma or cumulative-trauma doctrine appears to have originated with the House of Lords decision in Burrell & Sons, Ltd. v. Selvage, [90 L.J. 1340 (H.L. 1921)] . . . [I]t has had considerable acceptance in this country and accounts for many of the successful cases that lack brevity of both cause and result."); see also Tokyo House, Inc. v. Hsin Chu, 597 So.2d 348, 350-51 (Fla. Dist. Ct. App. 1992) (stating that "repetitive trauma theory" exists "apart from occupational disease theory"); Martin v. Cudahy Foods Co., 646 P.2d 468, 471 (Kan. 1982) (holding "that tenosynovitis when incurred through repetitive cyclic activities of an employee is an accidental injury within the meaning of the workmen's compensation act and not an occupational disease" because "it is more akin to accidental injury from repetitive small traumas than to occupational disease"); Hash v. Mont. Silversmith, 810 P.2d 1174, 1176 (Mont. 1991) (recognizing "that a 'tangible happening of a traumatic nature' need not be a single isolated incident, but may well be a 'chain of incidents' leading to an injury"); Macklanburg-Duncan Co. v. Edwards, 311 P.2d 250, 255 (Okla. 1957) (holding "that . . . an injury . . . may be inflicted progressively and over a more or less lengthy period rather than being confined to infliction on one definite date and as the result of an isolated or particular event"). Given the theory's prevalence in the workers' compensation jurisprudence of not only Utah but throughout the country, I am not convinced that the "cumulative trauma" theory of injury by accident was originally erroneous.

         ¶ 61 The second part of the test focuses our analysis on "how firmly the precedent has become established in the law since it was handed down." Eldridge, 2015 UT 21, ¶ 22. In this inquiry, we consider many things, "including the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people's reliance on the precedent would create injustice or hardship if it were overturned." Id.

         ¶ 62 JBS argues that the "cumulative trauma" theory of injury by accident has become a "legal fiction . . . which has been stretched beyond all bounds of reasonableness to allow occupational disease claims to be filed as accidents." Specifically, JBS asserts that the legislature intended that the 1991 Occupational Disease Act amendments would expand coverage under the Occupational Disease Act and diminish coverage under the Workers' Compensation Act. But to read into the new language of the Occupational Disease Act an intention to abrogate the "cumulative trauma" theory of injury by accident under Carling and the Workers' Compensation Act requires too many inferences. Indeed, it requires an inference that the legislature meant to upend decades of established precedent regarding our workers' compensation jurisprudence without amending a single word of the Workers' Compensation Act. This strikes me as a most extraordinary leap that runs a great risk of usurping the legislature's policy-making prerogative. I decline such an interpretation of the Occupational Disease Act.

          ¶ 63 This conclusion is supported by all of the Eldridge factors mentioned above. First, we look to the "age of the precedent." Id. The "cumulative trauma" theory of injury by accident established in Carling is over fifty years old.

         ¶ 64 Next, we examine "how well [the theory] has worked in practice." Id. I am of the opinion that the theory appears to have worked well in practice. Our appellate courts have used it to grant compensation under the Workers' Compensation Act in only four cases. See supra ¶ 35 & n.8; see also Nyrehn v. Indus. Comm'n, 800 P.2d 330, 335 (Utah Ct. App. 1990). This does not strike me as a theory of injury by accident "stretched beyond all bounds of reasonableness." As a result, I conclude JBS's assertions that the theory is harmful to the workers' compensation system are unfounded.

         ¶ 65 We also must examine the theory's "consistency with other legal principles." Eldridge, 2015 UT 21, ¶ 22. I believe that the "cumulative trauma" theory of injury by accident is consistent with the legal principles of workers' compensation requiring that injuries by accident be compensated under the Workers' Compensation Act and occupational diseases be compensated under the Occupational Disease Act. While JBS argues that the current test for whether an injury is by accident "defies common sense and logic" and that the Occupational Disease Act amendments give us an opportunity to change the way the line between injuries by accident and occupational diseases has been drawn, this argument does not support JBS's argument that the "cumulative trauma" theory of injury by accident should be overruled.[19] An argument that the current rule is illogical is not evidence that the Occupational Disease Act amendments abrogated the "cumulative trauma" theory of injury by accident under the Workers' Compensation Act. I certainly agree with JBS that there is a distinction between injuries by accident and occupational diseases; an injury by accident caused by "cumulative trauma" resulting in an acute event is not the same as the gradual onset of an occupational disease. But this is not to say that an occupational disease can never be caused by "cumulative trauma" as well. On the contrary, the classification of an injury caused by "cumulative trauma" depends on the circumstances surrounding the injury's unexpectedness and the definiteness of time as to the occurrence of the injury. There is nothing in the language of the "cumulative trauma" theory of injury by accident that requires courts to find that all injuries caused by "cumulative trauma" are necessarily caused by accident. Instead, the test is merely recognition that the term "accident" in the Workers' Compensation Act "does not preclude the possibility that due to exertion, stress or other repetitive cause, a climax might be reached in such a manner as to properly fall within the definition of an accident." Carling, 399 P.2d at 203. The case goes on to recognize that "such an occurrence must be distinguished from gradually developing conditions which are classified as occupational diseases." Id. The line between injuries by accident and occupational diseases is clearly contemplated and preserved under the language of the "cumulative trauma" theory of injury by accident. Therefore, it is up to courts and other adjudicative bodies to ensure that the line between injuries by accident and occupational diseases is preserved by analyzing the workplace harm for its unexpectedness and definiteness of time and classifying it accordingly. See supra ¶¶ 38-42.

         ¶ 66 Finally, we consider whether overturning the "cumulative trauma" theory of injury by accident now would create injustice or hardship in the realm of workers' compensation. See Eldridge, 2015 UT 21, ¶ 22. I conclude that it would. Undoubtedly, people have relied on this theory when deciding whether to file their claims under the Workers' Compensation Act or under the Occupational Disease Act. As stated above, there is no language in the 1991 amendments to the Occupational Disease Act that supports our overturning this precedent and at least one case has relied on this theory in making its ruling subsequent to the amendments. See Smith's Food & Drug, 2011 UT App 67, ¶¶ 12, 14. To overturn the precedent now, without any supporting statutory language and despite its age and the fact that litigants and courts continue to rely on it, would create injustice and hardship.

         ¶ 67 Therefore, although the 1991 amendments changed the language of the Occupational Disease Act, that language did not abrogate the "cumulative trauma" theory of injury by accident. JBS did not argue that the "cumulative trauma" theory of injury by accident was originally erroneous or that its original reasoning was unpersuasive. And, based on "the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people's reliance on the precedent would create injustice or hardship if it were overturned, " I would not overrule the "cumulative trauma" theory of injury by accident. Eldridge, 2015 UT 21, ¶ 22. In conclusion, JBS has failed to meet its heavy burden of convincing us to abandon the "cumulative trauma" theory of injury by accident.

         II. SUBSTANTIAL EVIDENCE SUPPORTS THE LABOR COMMISSION'S FINDING THAT MS. RUEDA'S INJURY RESULTED FROM "CUMULATIVE TRAUMA"

         ¶ 68 Ms. Rueda argues that the Labor Commission improperly classified her injury as a "cumulative trauma" injury. The Labor Commission, like the ALJ, largely adopted the medical panel's findings, determining that "Ms. Rueda's right-shoulder condition was a culmination of progressive cumulative trauma from her repetitive work duties." Ms. Rueda contends that this classification by the medical panel and the ALJ was "superfluous" and that the injuries "can more precisely be deemed specific individual workplace accidents with specific identifiable injuries."

          ¶ 69 Under the Utah Administrative Procedures Act, we review the order of the Labor Commission and not the underlying decision by the ALJ or the medical panel. See Utah Code § 63G-4-403(1) (granting this court "jurisdiction to review all final agency action resulting from formal adjudicative proceedings"). The standard of review for the Labor Commission's factual determination that Ms. Rueda was injured as a result of "cumulative trauma" is implicit in the language of the Administrative Procedures Act: we may "grant relief only if . . . the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court." Id. § 63G-4-403(4)(g); see Murray v. Utah Labor Comm'n, 2013 UT 38, ¶ 19, 308 P.3d 461 (explaining that subsection (4)(g) "implies a 'substantial evidence' standard"). We therefore consider whether the Labor Commission's finding of fact regarding Ms. Rueda's injury is supported by substantial evidence in the record. I conclude that it is.

         ¶ 70 The Labor Commission found that "Ms. Rueda's condition as of May 11, 2009, represented a culmination of progressive 'cumulative trauma' to her right shoulder" resulting from her work duties that began in 2007. This finding was adopted from the ALJ's order, which, in turn, was based largely on the medical panel's report. Ms. Rueda has not challenged the validity or accuracy of the report, contending only that the finding regarding progressive "cumulative trauma" was "superfluous." The Labor Commission, however, deemed the medical panel's analysis to be a "thorough and well-reasoned report."

         ¶ 71 In its report, the medical panel concluded that "Ms. Rueda suffered from a cumulative process that appears to have started in late 2007 and progressed slowly over time to the point of such severity that she ultimately was sent to have an injury formally reported on 5/11/09." The panel determined that the injury was "not specifically attributable to any event on 5/11/09." Instead, the panel attributed Ms. Rueda's injuries to "work activity that occurred over many months prior to 5/11/09." It determined that "[a]s a result of this longstanding, progressive 'cumulative trauma, '" Ms. Rueda's symptoms eventually became severe enough to warrant filing a claim, "even though no specific pathology can be identified to have occurred on 5/11/09." Moreover, Ms. Rueda told the medical panel that her pain began "within days of starting employment . . . and it progressively got worse . . . [for] nearly 2 years" until she was sent to a doctor on May 11, 2009. She also "insisted to th[e] medical panel that she had no incident or specific injury on 5/11/09 and that th[e] pain had been present and worsening since 2007."

         ¶ 72 I find that this evidence provides substantial support for the Labor Commission's finding that Ms. Rueda's shoulder injury on May 11, 2009, resulted from "a culmination of progressive cumulative trauma."

         III. MS. RUEDA'S INJURY IS AN OCCUPATIONAL DISEASE UNDER THE OCCUPATIONAL DISEASE ACT

         ¶ 73 Although I decline to abrogate the "cumulative trauma" theory of injury by accident, and would affirm the Labor Commission's findings that Ms. Rueda's injury was caused by "cumulative trauma, " I would hold that the Labor Commission incorrectly classified Ms. Rueda's injury as a workplace accident. As stated above, this is a mixed question of law and fact to which we give nondeferential review. See supra ¶¶ 19-21; see also Murray v. Utah Labor Comm'n, 2013 UT 38, ¶ 36, 308 P.3d 461. And based on the medical panel's report and the Labor Commission's findings, I would hold that Ms. Rueda's injury is an occupational disease.

         ¶ 74 As we cautioned in Carling v. Industrial Commission, decision-makers must distinguish accidental injuries from those "gradually developing conditions which are classified as occupational diseases." 399 P.2d 202, 203 (Utah 1965). The case at hand presents an example where the injury is such that this "cumulative trauma" crosses the threshold from an injury by accident caused by "cumulative trauma" into the realm of occupational disease resulting from a cumulative or gradual process. Ms. Rueda's symptoms began in late 2007 when she started working for JBS and "progressed slowly over time to the point of such severity that [Ms. Rueda] ultimately was sent to have an injury formally reported on 5/11/09." "[N]o specific pathology [was] identified to have occurred on 5/11/09." Indeed, Ms. Rueda "insisted . . . that she had no incident or specific injury on 5/11/09" but instead her pain "progressively got worse to the point that ultimately . . . 'they finally sent [her] to the doctor.'" The medical panel was careful to clarify whether the pain Ms. Rueda experienced on May 11, 2009, was different from before and whether a climactic event happened on that day. But Ms. Rueda "clearly stated . . . that nothing new happened" and that "[t]here was no new pain or different pain on 5/11/09 to that which she claim[ed] was present since 2007." While she stated that she heard a new popping noise in her shoulder that she had not previously heard, she insisted that the pain she experienced that day "was essentially the same as it had been for months."

         ¶ 75 Ms. Rueda's injury is thus different from the other injuries that our courts have found to be injuries by accident caused by "cumulative trauma" in the unexpectedness of the injury's occurrence and the gradualness of its occurrence. Ms. Rueda's injury was not reasonably unexpected. The job Ms. Rueda performed was "highly repetitive." And, as a result of her job, Ms. Rueda experienced almost constant pain for the two years she was employed at JBS. Nothing different happened to her on May 11, 2009, other than that her symptoms reached their logical conclusion and she was sent to a doctor. In contrast, the cheese cook's injury in Smith's Food & Drug, Inc. v. Labor Commission "was qualitatively different from the intermittent pain she had experienced" previously, and evidence supported the conclusion that "an 'acute event' caused [the cheese cook's] injury." 2011 UT App 67, ¶ 13, 250 P.3d 1008. While an accident "is not necessarily restricted to some single incident which happened suddenly at one particular time, " an accident must be unexpected or unintended and thus often manifests itself as an "acute event." Carling, 399 P.2d at 203; see also Smith's Food & Drug, 2011 UT App 67, ¶¶ 3, 4, 11, 13. Here, Ms. Rueda experienced right upper extremity pain shortly after she began her job at JBS, and after two years of repetitive motions with her right arm she experienced symptoms severe enough to have them examined by a doctor. It cannot be the case that her ultimate injury was unexpected after such a long period of time performing the same repetitive work tasks while subject to such chronic pain.

         ¶ 76 Other cases that found an injury to be a compensable injury by accident caused by "cumulative trauma" occurred over a period of mere months. For example, in Smith's Food & Drug, the cheese cook's pain occurred "over a period of several months" and "[t]he period of time in which [she] experienced periodic shoulder pain was short." 2011 UT App 67, ¶ 13. In Nyrehn v. Industrial Commission, the stock room clerk's back injury resulted from "two and a half months" of repetitive work activities. 800 P.2d 330, 335 (Utah Ct. App. 1990). Finally, in Specialty Cabinet Co. v. Montoya, the gym teacher's knee injury progressed over a period of a few months from January to April 1983. 734 P.2d 437, 438 (Utah 1986).[20] Ms. Rueda's injury, which occurred over a period of two years, was not reasonably unexpected and too gradual to be classified as an injury by accident; as a result, on the spectrum of work-related injuries, her injury is more appropriately viewed as an occupational disease.

         ¶ 77 In conclusion, because Ms. Rueda's injury was gradual and-in light of Ms. Rueda's history of pain under the work conditions-not unexpected, the injury more appropriately falls on the occupational disease side of the workers' compensation spectrum than on the injury by accident side.

         CONCLUSION

         ¶ 78 JBS has not, in my view, met its burden to convince us that the 1991 amendments to the Occupational Disease Act abrogated the "cumulative trauma" theory of injury by accident. Furthermore, I am of the opinion that there was substantial evidence supporting the Labor Commission's finding that Ms. Rueda's injury was caused by "cumulative trauma." Finally, I would conclude that Ms. Rueda's injury should be classified as an occupational disease under the Occupational Disease Act. Therefore, I would affirm the factual findings of the Labor Commission in its final order, but would reverse its determination that Ms. Rueda's injury was compensable under the Workers' Compensation Act.

          Chief Justice Durrant, opinion:

         ¶ 79 The Workers' Compensation Act (WCA) provides compensation to employees for any "injury by accident arising out of and in the course of employment."[1] The Occupational Disease Act (ODA), in contrast, provides compensation for "any disease or illness that arises out of and in the course of employment and is medically caused or aggravated by that employment."[2] The WCA specifically does not provide compensation for "disease[s], "[3] while the ODA specifically states that it does not provide compensation for injuries covered by the WCA.[4] Thus, the legislature has made clear that for purposes of the WCA and ODA a particular type of harm to an employee cannot be both an injury and a disease. It is one or the other. This difference is an important one because compensation for a disease under the ODA is often reduced in cases where compensation for an injury under the WCA would not be.[5]

         ¶ 80 We are charged, then, with distinguishing between the sets of harms covered by the WCA-injuries by accident-and those covered by the ODA-occupational diseases. Because we have not yet addressed the scopes of these two acts in light of the recent amendments to the ODA, this is a question of first impression. It is a question that is complicated by the fact that the legislature has not fully defined the terms "injury, " "disease, " or "accident, " as used in these two compensation acts. And it is further complicated by the fact that the legislature has offered no rationale for compensating an employment-caused disease at a lower rate than an employment-caused injury. Nor can I think of one. Regardless, we are charged with distinguishing between those harms covered by the WCA and the ODA.

          ¶ 81 Below, I begin by reviewing Justice Himonas's approach and some of the practical problems that I see with it. I then discuss the two relevant statutes in turn, reviewing Justice Himonas's interpretation of each one and explaining why I believe that interpretation is erroneous. I also describe what I believe to be the proper way of interpreting and harmonizing the two statutes, relying on both the plain meaning and the history of the statutes to conclude that the WCA covers all "injuries" while the ODA covers all "diseases" as those terms are commonly understood. Under this standard, I conclude that Ms. Rueda's harm should be categorized as an "injury" and should be evaluated under the WCA. And because I agree with Justice Himonas that we should not abandon the cumulative trauma theory that is part of the term of art "by accident" and that the Labor Commission's findings were supported by substantial evidence, I would affirm the Commission's ruling.

         I. Justice Himonas's Approach Fails to Make the Proper Distinction Between the Scopes of the WCA and ODA

         ¶ 82 Justice Himonas and I agree that the scope of the WCA and the scope of the ODA are primarily to be understood in contrast to one another, i.e., that whatever is covered under one act cannot be covered under the other. This conclusion follows from the express provisions of the statutes. First, the WCA states that it covers "injur[ies] by accident" but specifically excludes from its scope "disease[s], "[6] which we have interpreted as "occupational diseases."[7] Thus, whatever the WCA covers, it cannot include "occupational diseases." The ODA, on the other hand, covers "occupational diseases, "[8] but expressly states that it does not compensate the "injuries by accident" that are covered by the WCA.[9] Thus, each statute covers a mutually exclusive set of harms.

         ¶ 83 Justice Himonas has made a yeoman effort to define the key terms of the statutes-"injury, " "accident, " and "occupational disease"-and to harmonize the WCA and ODA. And in doing so he has attempted to be consistent with our very inconsistent caselaw. But I believe that Justice Himonas's approach is fundamentally flawed because it rests on the premise that the distinction between the scope of the WCA and the scope of the ODA turns on the difference between "injuries by accident" and "occupational diseases" as those terms have been understood in our caselaw. This premise requires Justice Himonas to fashion a test for distinguishing the scopes of the statutes that is unclear, and, in my mind, both unsupported by the statutory language and potentially inequitable. Instead, I believe that the proper distinction to be made is between the ordinary meaning of "injuries" and "diseases, " which distinction is both compelled by the statutory language and has long been recognized by other states.

         A. Justice Himonas's Approach Relies on the Distinction Between the Common Law Terms of Art "Injury by Accident" and "Occupational Disease"

         ¶ 84 According to Justice Himonas, the appropriate analysis contrasts "injuries by accident"[10] with "occupational disease" as those terms have been understood in our caselaw. Under Justice Himonas's approach, potentially compensable harms fall along a spectrum. At one end are those harms covered by the WCA- "injuries by accident." At the other are those covered by the ODA-"occupational diseases." In order to determine where on the spectrum a particular harm lies, Justice Himonas looks to the factors established in our caselaw interpreting the terms "injury by accident" and "occupational disease."

         ¶ 85 In our caselaw, the term "by accident" is defined to encompass "either the cause or the result of an injury, "[11] and may refer to a harm arising from a "single incident which happened suddenly at one particular time" or may refer to a harm emerging more gradually "due to exertion, stress or other repetitive cause [that reaches] a climax."[12] An occupational disease, on the other hand, has been defined as a "gradually developing condition[]."[13]Justice Himonas has distilled these two term-of-art meanings into two factors that determine whether a harm in a given case falls more on the "injury by accident" or the "occupational disease" side of its compensation spectrum. First, Justice Himonas looks to "the unexpectedness of the [harm], " which can be found in either the "cause of the injury or result of the occurrence." Second, he looks to "the definiteness as to the occurrence of the [harm], "[14]which looks to the time it takes for the harm to develop, and whether the harm can be identified as resulting from discrete events.

         ¶ 86 So the same ultimate condition can be either an injury by accident or an occupational disease depending on how it develops, how long it takes to develop, and whether it "result[s] in an acute event."[15] If the harm is unexpected-i.e., either caused by an unexpected event (or series of events) or is the unexpected result of ongoing stress-and has a more definite occurrence-i.e., it can be traced to specific incidents or it arose over a relatively short period of time-it is an "injury by accident" and compensable under the WCA. If, on the other hand, the harm is a more expected result of ongoing stress that either cannot be easily traced to discrete incidents or emerged over a longer period of time, it is an "occupational disease" and compensable under the ODA.

         ¶ 87 Justice Himonas's construct for distinguishing between injuries by accident and occupational diseases leads to perplexing results. The cheese cook whose shoulder pain occurs over a period of several months, [16] the stock room clerk whose back injury emerged over two and a half months, [17] and the gym teacher whose knee injury progressed over a period of a few months[18] are all compensated at a higher rate than they would be if, like Ms. Rueda, they had soldiered on for two years. Ms. Rueda's pain, which would be deemed an "unexpected" result for the first few months and therefore an accident, eventually, at some point over the course of two years, became "not reasonably unexpected, "[19]"too gradual to be classified as an injury by accident, " and accordingly somehow morphed into a disease.[20] Although Justice Himonas recognizes that "under our statutory scheme, the same injury cannot be both a workplace accident and an occupational disease at the same time, "[21] his test ultimately does permit the same harm-be it a torn rotator cuff or silicosis-to be categorized as either an injury by accident or an occupational disease in different cases based on hard-to-define factors.

         ¶ 88 I believe that Justice Himonas, despite his insistence to the contrary, has "adopt[ed] a rule . . . governed by the bodily resistance of the individual."[22] Indeed, though Justice Himonas attempts to describe the consideration of the time a particular harm took to emerge as only "a secondary factor, " with "the primary factor being unexpectedness of cause of the injury or unexpectedness of the resultant injury, "[23] his application of his own standard belies his assertion.

         ¶ 89 Under Justice Himonas's approach, the only way I see to distinguish between an unexpected harm emerging from repetitive motion-an injury by accident-and a "not reasonably unexpected" harm emerging from repetitive motion-an occupational disease-is to look either to the length of time involved or to whether there was some "definite time"[24] or "definite event"[25] when the harm emerged or worsened. The problem with the former distinction is that it makes the length of time an individual suffered before seeking medical attention determinative of compensation-a result everyone agrees is erroneous. The problem with the latter distinction is that some of our prior cases-cases reaffirmed by Justice Himonas today- have required no such definite occurrence in awarding compensation for injuries under the WCA.[26] Thus, we have an unclear and, in my view, potentially inequitable standard based on inconsistent caselaw.

         ¶ 90 Again, I do not fault Justice Himonas for his attempt to bring some order both to a statutory scheme that is far from clear and to our caselaw, which is also less than a model of clarity. But I would approach the task differently, in a way that I believe better follows the statutory language and is in harmony with other states' approaches to this issue. Below I address each statute, beginning with the WCA, in order to explain both why Justice Himonas's approach-which relies on the terms of art "by accident" and "occupational disease"-does not align with the legislative intent expressed in the two statutes and why a plain language approach is necessary.

         B. The Language of the Statutes Reveals that Their Scopes Depend on the Ordinary Meaning of "Injury" and "Disease"

         ¶ 91 Justice Himonas approaches the task of defining the two sets of mutually exclusive harms created by the statutes by envisioning a spectrum between the WCA and ODA, classifying harms as "injuries by accident" or "occupational diseases" based on certain factors derived from our caselaw. I disagree. I believe that the statutes require a categorical approach, where a harm is categorized at a threshold level as either falling within the scope of the WCA or the ODA. And, unlike Justice Himonas, I think the central distinction between the two statutes' scopes-and thus the key to the categorization-is found in the difference between the ordinary meaning of the terms "injury" and "disease, " not in the difference between the term of art understandings of "injury by accident" and "occupational disease, " as Justice Himonas suggests. Although the statutes could be clearer, I believe their language and history requires this approach, which is the same approach taken by a majority of other states that have considered this issue.[27]

          1. The WCA Covers "Injuries, " Not "Injuries by Accident"

         ¶ 92 The WCA covers "injur[ies] by accident arising out of and in the course of employment" and excludes only "disease[s]."[28] Justice Himonas reads the phrase "injury by accident" as a single, indivisible concept. He accordingly explains the scope of the WCA according to what he describes as the term of art understanding of "injury by accident." In my view, though I agree that the term "by accident" is indeed a term of art with the meaning described by Justice Himonas, I do not believe that term defines the scope of the WCA. Instead, the phrase "by accident, " in conjunction with the phrase "arising out of and in the course of employment" defines only whether an "injury"-a harm that has been categorized as falling within the scope of the WCA-is compensable.

         ¶ 93 First, I agree with Justice Himonas that the phrase "by accident" or "accident, " is a term of art within the context of the WCA that has been incorporated into the statute. When the WCA was first enacted, it contained the same "by accident" language at issue today.[29] As Justice Himonas has discussed, we have a long line of cases interpreting this phrase. There are two aspects of our interpretation of "accident" relevant today. First, as Justice Himonas points out, we have adopted a broad interpretation of the term, holding "that an accident is an unexpected or unintended occurrence that may be either the cause or the result of an injury."[30] Second, and as part of that broad interpretation of the term "accident, " we have adopted the "cumulative trauma" theory of accident. Under this theory, an "accident" "is not necessarily restricted to some single incident which happened suddenly at one particular time, " but instead includes "accident[s]" that emerge over time "due to exertion, stress or other repetitive cause [that reach] a climax."[31]

         ¶ 94 Because the legislature has amended and reenacted the WCA many times over the past century without amending or changing the "by accident" language, we presume it has approved of and adopted our interpretation.[32] Thus, the term "accident" in the WCA is no longer understood according to its ordinary meaning, but as a term of art as described above. But although Justice Himonas and I agree that the phrase "by accident" in the WCA is to be understood as a term of art, we disagree as to the stage at which that understanding becomes applicable. Justice Himonas relies on the term of art "by accident" at the threshold, categorization stage to determine the scope of the WCA. I, on the other hand, believe that the term of art does not apply to the threshold question of what harms are covered by the WCA, but rather goes only to whether a harm that has already been classified as falling within the scope of the WCA-an "injury"-is compensable.

         ¶ 95 Although the legislature has not clearly defined the extent of the statute's scope, its language guides the inquiry that we must make. The WCA repeatedly states that it applies to "injuries, "[33] and our caselaw confirms that its scope is focused on "injuries"[34] and not "injuries by accident."[35] Justice Himonas's focus on the "by accident" language mistakes the relevant standard by conflating compensability with categorization. The WCA states that it covers "injur[ies] by accident arising out of and in the course of employment."[36] And as other states have recognized when interpreting similar statutory schemes, the WCA's definition of its scope implicitly requires "threshold proof of [injury]" as a "prerequisite to recovery."[37] It "assumes that the employee suffers from [an 'injury'] and focuses on whether the [injury] is causally connected to workplace conditions"[38] and is "by accident."[39]

         ¶ 96 Because the WCA's scope is tied to the existence of an "injury, " the statutory definition of the act's scope is incomplete. It presumes the existence of an injury and discusses only the requirements for an injury to be compensable-that it be "by accident" and "aris[e] out of and in the course of employment."[40] I believe the proper way to resolve this issue is to use our usual tools of statutory interpretation to interpret the key term "injury." And because the legislature has not indicated that the term "injury" should be understood in a technical way, we should rely on our usual plain language approach to interpret "injury" according to its ordinary meaning.[41]

          ¶ 97 Ultimately, because the scope of the WCA is not defined by the term of art "by accident, " an analysis of that term of art is simply irrelevant to the threshold issue we decide today-which compensation act applies to Ms. Rueda's harm. Only after the threshold determination has been made that a harm is an "injury" and covered by the WCA should we look to whether the injury was "by accident" to determine whether that injury is compensable. Justice Himonas's approach, which relies on the term of art "by accident" to define the scope of the WCA, conflates the separate inquiries of categorization and compensability. I turn now to a discussion of the ODA and the definition of "disease." 2. The ODA Covers "Diseases, " Not "Occupational Diseases"

         ¶ 98 The ODA covers "any disease or illness that arises out of and in the course of employment and is medically caused or aggravated by that employment."[42] As noted above, the WCA covers "injur[ies], " but expressly excludes from its scope "disease."[43] So the key term in determining the scope of the ODA is "disease."[44]

          ¶ 99 Justice Himonas interprets this key term in both the WCA[45] and the ODA[46] as incorporating the common law term of art "occupational disease." I agree that "occupational disease" has historically been a technical term of art. I further agree that this term of art was grafted into the WCA in the past, as discussed more fully below. But I disagree as to the proper understanding of the term of art and that the legislature intended to incorporate Justice Himonas's understanding of "occupational disease"-an understanding based in pre-ODA caselaw-into either statute after the enactment of the ODA in 1941. I believe that the ODA is clear that the legislature has rejected the common law term of art understanding of "occupational disease." In addition, by amending the ODA in 1991 to eliminate specifically identified diseases from the definition of "occupational disease, " the legislature jettisoned its previous statutory definitions of "occupational disease." As such, in place of our precedent's term of art understanding of "occupational disease" and its own previous statutory definitions of the term, the legislature has defined "occupational disease" to simply mean "any disease, " a phrase that should be interpreted according to its plain meaning.

         a. The language of the ODA contradicts a term of art understanding of "occupational disease"

         ¶ 100 As Justice Himonas correctly articulates, when the legislature has "invoke[d] specialized legal terms that carry an extra-ordinary meaning[, ] . . . we credit the legal term of art, not the common understanding of the words."[47] But there must be something in the statute or its history that "clearly show[s] that the language was used in a sense different from its natural and ordinary meaning."[48] Further, "when the construction of a section involves technical words and phrases which are defined by statute, the provision must be construed according to such peculiar and appropriate meaning or definition."[49] Thus, if the terms at issue are defined by statute in a way that differs from the term of art meaning, we cannot rely on the non-statutory understanding.[50] Ultimately, a statutory definition of a word or phrase trumps any differing term of art understanding. And as discussed below, there is no indication in the language of these statutes that the legislature intended to define the scopes of the two acts using the term of art understandings of "by accident" or "occupational disease" as suggested by Justice Himonas. Thus, we should employ our traditional plain language approach.

         ¶ 101 The WCA states that "'injury by accident arising out of and in the course of employment' does not include a disease."[51]Similarly, the ODA defines "a compensable occupational disease" as "any disease."[52] It is telling that in neither statute, either at present or at any point in the statutes' histories, did the legislature choose to use the actual term of art "occupational disease" to define either compensation act's scope.[53] To paraphrase another case in which we rejected reliance on a term of art definition to interpret a phrase that was not the term of art:

Had the Legislature intended a restrictive meaning it could have used the term of art ["occupational disease"] in place of the term ["disease"]. Unlike the term ["disease, "] a restrictive reading of the term of art ["occupational disease"] is supported by several cases where the term ["occupational disease"] is distinguished from [other diseases and injuries] . . . . [54]

         Although it may be true that "occupational disease" has a long history as being understood in a particular way in the caselaw of both this state and our sister states, that caselaw is irrelevant unless the legislature chooses to incorporate it.[55] And here there is no indication that "the language was used in a sense different from its natural and ordinary meaning."[56]

         ¶ 102 Justice Himonas fails to address this issue. He never explains what statutory language leads him to conclude that by specifically adopting the phrase "any disease" as the definition of "occupational disease, " the legislature intended to adopt our term of art understanding of "occupational disease."[57] The closest Justice Himonas comes to doing so is his focus on the causation language found in section 34A-3-103, which states that an occupational disease is compensable if it "arises out of and in the course of employment and is medically caused or aggravated by that employment." Justice Himonas reads this language to define an occupational disease as those harms that are "not unexpected" ...


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