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A-1 Septic Tank Services LLC v. Messersmith

Court of Appeals of Utah

April 25, 2019

A-1 Septic Tank Services LLC and Auto Owners Insurance Company, Petitioners,
v.
Kris Messersmith, Respondent.

          Original Proceeding in this Court

          Mark R. Sumsion and Cody G. Kesler, Attorneys for Petitioners

          Austin B. Egan, Attorney for Respondent

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.

          OPINION

          CHRISTIANSEN FORSTER, JUDGE.

         ¶1 An administrative law judge (ALJ) dismissed with prejudice a request for a hearing on Kris Messersmith's claim for work-related injury and disability benefits following a work accident. Messersmith appealed to the Utah Labor Commission (Commission), and the Commission modified part of the ALJ's decision: the Commission changed the dismissal to one without prejudice, thereby permitting Messersmith to refile his claim. A-1 Septic Tank Services LLC and Auto Owners Insurance Company (collectively, A-1) seek judicial review. Because the Commission effectively eliminated the ALJ's decision on the merits, we set aside the Commission's decision and reinstate the ALJ's disposition of the matter.

         BACKGROUND

         ¶2 A-1 hired Messersmith in 2014 to work as a truck driver, requiring that he clean septic tanks and storm drains as part of his position. In a non-work-related accident sustained on December 25, 2015, Messersmith slipped and landed on his buttocks and was diagnosed as suffering from an "acute right buttock contusion." He obtained a magnetic resonance imaging (MRI) scan that showed he suffered from "early degeneration" and a disc protrusion in the lower back between the last lumbar vertebra and the first sacral segment of the vertebral column (L5-S1).

         ¶3 Shortly thereafter, Messersmith was diagnosed with a "subacute lumbar contusion," and a physician assistant noted that two of Messersmith's lower vertebrae needed fusion. During a different exam, Messersmith reported to a family nurse practitioner (FNP) that he was in "the worst pain he has ever experienced." Despite the pain, Messersmith took no time off work and continued performing his normal work duties.

         ¶4 On May 25, 2016, while working and cleaning storm drains, Messersmith pulled on a metal grate weighing "a few hundred pounds," and he felt a "pop" in his low back. He obtained a second MRI on May 31, 2016, which showed a "relatively large" central disc herniation at L5-S1. During an exam, the physician (Doctor 1) noted that Messersmith "was getting by with the pain until [May 25, 2016, ] when he reinjured it pulling a storm drain." Doctor 1 performed surgery on August 5, 2016, including discectomy, posterior lumbar fusion, and transforaminal lumbar interbody fusion. Following surgery, Messersmith had several post-operative outpatient medical visits.

         ¶5 In 2016, Messersmith submitted an application for hearing with the Commission and requested medical benefits, temporary total disability benefits, travel reimbursement, and unpaid interest for the May 25 work-related injury. The Commission processed his application and ordered A-1 to respond to the application for hearing and request for benefits. In its answer to the application, A-1 denied liability for Messersmith's claim and asserted that there was no medical causation between Messersmith's workplace accident and his claimed injuries.[1]

         ¶6 At A-1's request, Messersmith underwent a separate medical exam (A-1 Exam) in which another physician (Doctor 2) concluded that Messersmith's injuries and his need for surgery were "causally related to the December 25, 2015 injury and not affected" by the May 25 work-related accident. Doctor 2 further concluded that the May 25 accident likely did not cause a permanent or temporary aggravation of Messersmith's preexisting back condition. Relying on the A-1 Exam report, A-1 continued to deny liability.

         ¶7 The ALJ held a hearing and thereafter determined that there was no "specific record in which a provider opined that [Messersmith's] back issue was medically causally related to the May 25, 2016 industrial accident." Because no medical opinion was admitted that conflicted with Doctor 2's assessment, the ALJ concluded that there was no reason to refer the matter to an impartial medical panel and dismissed Messersmith's claim with prejudice.

         ¶8 Messersmith petitioned the Commission to review the ALJ's decision, asserting that he had provided sufficient evidence of medical causation and that the Commission should remand the matter to the ALJ with instructions to appoint a medical panel. The Commission agreed with the ALJ that Messersmith had failed to provide evidence of medical causation linking the May 25 accident to his injuries that required surgery. The Commission observed that the medical reports submitted by Messersmith, including those from Doctor 1, ...


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