Utah Worker Found to Have Sustained PTD In Spite of His Return to Work

Acknowledging that in most cases in Utah, an injured worker who is capable of returning to work full-time cannot be considered to have sustained permanent total disability, a state appellate court nevertheless held that, where as here, the worker had sustained a catastrophic work-related injury involving the loss of limbs or eyes, the return to work issue was not relevant and the worker was entitled to full benefits for PPD [Wasatch Elec. Dynalectric Co. v. Labor Comm'n & Benward, 2020 Utah App. LEXIS 21 (Feb. 13, 2020); see Utah Code Ann. § 34A-2-413(9)].

Background

The essential facts were not in dispute. The worker was part of a team tasked with maintaining a set of electrical power lines. He sustained serious injuries when high voltage electricity arched though his body, exiting through both of his feet. Doctors were able to safe his life, but both feet had to be amputated. The worker also suffered significant burns over parts of his body and other long-term health issues, including sleep apnea and tinnitus.

After nearly a year of recuperation, the worker was able to return to work on a part-time basis, although not in the same capacity. A few months later, he was able to resume full-time work as a safety officer and continued in that job with the employer until January 2017, when he was laid off for unrelated reasons.

In March 2017, after being laid off, the worker filed a claim for PTD benefits stemming from the loss of both of his feet, asserting that he was entitled to continuing PTD benefits from the date of his accident, and continuing for the rest of his life, regardless of the fact that he was able to return to work after the accident as a safety manager. The employer disagreed. It acknowledged that the worker met the criteria for PTD under Utah Code Ann. § 34A-2-413(9), given the amputation of both of his feet. It acknowledged that the worker should receive benefits for the time periods in which he was fully or partially unable to work. However, the employer asserted that the worker was not entitled to PTD benefits once it was demonstrated that he was again capable of gainful employment.

Parenthetically, it should be noted that after being laid off, the worker was eventually able to find similar employment as a safety professional at an electrical engineering company. The court noted that although the work was inconsistent and the wages and benefits were project-dependent, the worker now earned a weekly wage that was even higher than the wage he earned at his earlier employer.

ALJ & Commission Findings

An ALJ found that the worker’s injury created only a “presumptive finding” that he was permanently and totally disabled, and that this presumption was rebutted by the fact that he had returned to work. The ALJ concluded that the employer was not obligated to pay PTD benefits during periods in which the worker was gainfully employed.

The Commission reversed, concluding that the worker was entitled to PTD even after returning to work. The Commission remanded the case and directed the ALJ to make a factual determination as to whether the money paid to the worker while he was employed by the employer post-accident was intended as a substitute for disability compensation or as regular compensation for the work performed. On remand, the ALJ determined that the worker was paid for actual work—that the worker “gave a dollar’s worth of labor for every dollar that was paid.” The Commission affirmed and found that the employer acquired an ongoing obligation to pay PTD benefits beginning with the date of the accident and continuing for the remainder of the worker’s life, although with credits or offsets allowed for wages paid.

Appellate Court’s Decision

Initially, the appellate court observed that for most injured workers, PTD benefits were available only if the worker proves, by a preponderance of the evidence, the existence of six elements:

1. That he or she “sustained a significant impairment” as a result of a work-related injury;
2. That he or “she is not gainfully employed”;
3. That he or she has an impairment that limits his “ability to do basic work activities” and
4. Prevents him or her from “performing the essential functions of the work” for which he or she was qualified prior to the accident;
5. That he or she “cannot perform other work reasonably available”; and
6. That “the industrial accident or occupational disease is the direct cause of the employee’s permanent total disability” [see Utah Code Ann. § 34A-2-413(1)].

The court added that here, given the fact that the worker was now able to work full-time, and has been since at least 2014, he could not meet this test, and the worker did not argue that he could.

Two Avenues to PTD

Citing Intermountain Slurry Seal v. Labor Commission, 2002 UT App 164, 48 P.3d 252, the court noted that Utah’s workers’ compensation statute set forth “two avenues” that are available for an employee to demonstrate the existence of a permanent, totally disabling condition. First, he or she could establish PTD via the six-step process outlined above. Alternatively, however, a worker can establish entitlement to PTD benefits by showing nothing more than the existence of an injury listed in Utah Code Ann. § 34A-2-413(9). Citing Larson’s Workers’ Compensation Law, § 83.08, the court added that not only did it find Intermountain Slurry binding, it was “persuasive.”

Here, there was no dispute that the worker met the requirements of subsection (9) for demonstrating PTD. The parties had stipulated that the worker’s workplace accident arose out of the course and scope of his employment with the employer, and that, as a result of that accident, he sustained the loss of both of his feet. And under subsection (9), the worker need show nothing more.