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Benge v. Cody Ekker Construction

Court of Appeals of Utah

October 10, 2019

Gerald Benge, Petitioner,
v.
Cody Ekker Construction, Auto Owners Insurance Company, and Labor Commission, Respondents.

          Original Proceeding in this Court

          Richard R. Burke, Attorney for Petitioner

          Mark R. Sumsion and Lori L. Hansen, Attorneys for Respondents Cody Ekker Construction and Auto Owners Insurance Company

          Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.

          MORTENSEN, JUDGE.

         ¶1 Gerald Benge injured his knee at work and ultimately underwent three surgeries. Due to a dispute regarding whether the latter two surgeries were medically caused by the work injury and whether any permanent impairment was attributable to the workplace incident, Benge filed a workers' compensation claim. In making his claim, Benge tried to sweeten his arguments by relying on Gunnison Sugar Co. v. Industrial Commission of Utah, 275 P. 777 (Utah 1929). However, the Utah Labor Commission denied Benge's claim. We decline to disturb the Commission's order.

         BACKGROUND[1]

         The Work Injury and Three Surgeries

         ¶2 In 2013, while working for Cody Ekker Construction (Employer), Benge was operating an excavator on a trailer ramp. When the ramp suddenly tilted, he quickly got out of the excavator onto the trailer and then jumped down from the trailer to the ground. When he landed, his right knee twisted, popped, and caused him immediate pain. Benge went to the emergency room and was diagnosed with a torn meniscus and a fracture of his tibial plateau. Soon after, a doctor performed surgery (First Surgery) in which he made small incisions, cleaned out dead and damaged tissue, removed part of the meniscus, and shaved off and reshaped part of the patella on Benge's right knee.[2] During the First Surgery, the operating doctor noted "some balled up tissue with some obvious partial tearing of the ACL . . . [which] was calcified representing probable older type tissue from an older pathologic type tear." Benge was not happy with the results of his treatment, however, so he requested a change of doctors and began seeing Dr. Holmstrom.

         ¶3 Over the next two years, Benge underwent two more surgeries on his right knee. In January 2014, as pain in Benge's knee persisted and after discussing the details of his knee with Dr. Holmstrom, Benge received a right knee ACL reconstruction (Second Surgery). Then, in March 2015, Dr. Holmstrom performed a total knee replacement (Third Surgery). Dr. Holmstrom opined that all Benge's knee problems were causally connected to the 2013 work injury. However, Employer's medical consultant, Dr. Green, evaluated Benge's injuries and partially disagreed with Dr. Holmstrom's conclusion. Dr. Green agreed that the injuries addressed in the First Surgery were causally connected to the 2013 work injury, but he concluded that the other knee problems addressed in the subsequent surgeries were preexisting and unrelated to the 2013 work injury.

         The Administrative Adjudication

         ¶4 Benge then filed a claim for permanent total disability under the Utah Workers' Compensation Act, [3] and an administrative law judge (ALJ) held an evidentiary hearing. During the hearing, Employer admitted that Benge sustained a meniscus tear and tibial plateau fracture as a result of the 2013 incident-or in other words, Employer admitted that the First Surgery was compensable by workers' compensation. But Employer argued that Benge's ACL tear and conditions that led to the Second Surgery and Third Surgery were not related to the 2013 work injury, and thus not compensable.

         ¶5 Because of the doctors' contradictory opinions, the ALJ referred the medical issues to a medical panel (Panel).[4] The Panel concluded that Benge's 2013 work injury did not medically cause the injuries addressed in the Second Surgery and Third Surgery. The Panel specifically reported that "neither the right tibial plateau fracture nor the lateral meniscal tear impacted or accelerated Mr. Benge's other right knee condition in any degree." (Emphasis added.)[5] The Panel also concluded that Benge's 2013 work injury reached medical stability by December 15, 2013, and did not result in permanent impairment.

         ¶6 After reviewing the Panel's reports, the ALJ adopted the Panel's medical conclusions. Benge argued, however, based on Gunnison Sugar Co. v. Industrial Commission of Utah, 275 P. 777 (Utah 1929), that his knee problems after the First Surgery were connected to the work-caused injuries, as a matter of law. The ALJ rejected Benge's argument, and explained that Benge's injuries related to his First Surgery "did not impact or accelerate [his] other knee conditions." Additionally, the ALJ explained that Benge's "preexisting knee conditions and treatment at all times based on the preponderance of the medical evidence and medical opinions have existed independently from" the 2013 work injury. The ALJ further found that "the evidence show[ed] that [Benge's] primary injury was not aggravated by medical or surgical treatment." Benge also argued that Employer was equitably estopped from denying compensability for the subsequent surgeries, but the ALJ rejected this argument as well, citing Olsen v. Industrial Commission of Utah, 776 P.2d 937 (Utah Ct. App. 1989).[6] Consequently, the ALJ denied Benge's claim regarding the Second Surgery, Third Surgery, and permanent impairment.

         ¶7 Benge then filed a motion for agency review, and the Commission issued an order agreeing with the ALJ's decision. In its order, the Commission noted the disagreement between Dr. Holmstrom's and Dr. Green's opinions as to the medical cause of Benge's injuries addressed in the Second Surgery and Third Surgery. The Commission further acknowledged that the ALJ adopted the Panel's conclusion that Benge's 2013 work injury warranted the First Surgery but not the subsequent surgeries. Moreover, the Commission specifically disagreed with Benge's argument that Gunnison Sugar applied to his situation. And the Commission stated that "a preponderance of the evidence shows the [2013] accident medically caused an injury that was separate from other pathology in Mr. Benge's right knee and unrelated to the [First ...


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