The Utah Labor Commission is excited to welcome Alison Adams-Perlac as the new Director of the Utah Antidiscrimination and Labor Division. Alison has a Bachelor of Arts degree from the University of Utah in Political Science with a certificate in International Relations.
After her undergraduate studies, Alison graduated from the S.J. Quinney College of Law at the University of Utah with a Juris Doctorate. During law school, she was employed with Catholic Community Services in the Immigration and Refugee Resettlement Department. While there, she enjoyed assisting immigrants with applying for citizenship. After her graduation from Law School, she worked as a Guardian ad Litem, representing abused and neglected children. She has spent the past four years in the Administrative Office of the Courts, serving first as the Juvenile Court Law Clerk to all of Utah’s juvenile court judges, and then as an Associate General Counsel.
Alison is drawn to work that helps vulnerable or underrepresented individuals, and she looks forward to serving in the Antidiscrimination and Labor Division. “Educating the public concerning their rights and responsibilities as they pertain to labor and housing issues is important to me,” said Alison. “I am excited to increase the community outreach of the Division so that the residents of Utah are aware of the services they are afforded through the Labor Commission,” she also expressed. Alison is eager to learn of any improvements that can be made to ensure that all individuals who contact the Division receive the help and information they need. Alison is passionate about serving the public and continuing the critical work that the Division accomplishes each day through its dedicated staff.
2016 Legislative Session
The Utah Legislature enacted a number of bills during the 2016 Legislative Session that modified the statutes administered by the Labor Commission. The legislative changes included modifications to the workers’ compensation system, occupational safety and health requirements, fair housing agreements, and employment discrimination.
Workers' Compensation SB76: Workers’ Compensation for Volunteers. This bill creates a mechanism whereby nongovernment entities may elect to provide workers’ compensation coverage for volunteers. The bill specifies that volunteers are not considered “employees” for purposes of workers’ compensation coverage unless a nongovernment entity specifically elects to obtain workers’ compensation coverage for a volunteer. By choosing such coverage, a nongovernment entity avails itself of the exclusive remedy offered under the Workers’ Compensation Act. SB76 also provides guidance in how an insurance carrier is to calculate the premium.
SB127: Labor Commission Amendments. SB127 modifies the Workers’ Compensation Act to provide a statute of limitations for when a self-insured employer or insurance carrier may seek reimbursement from the Employer’s Reinsurance Fund (ERF). Currently, a self-insured employer or carrier may seek reimbursement at any time for the ERF’s share of medical benefits or compensation provided to or on behalf of an injured worker. This bill provides that any request for reimbursement for benefits or compensation paid prior to July 1, 2016, must be submitted to the ERF by June 30, 2018. Any request for reimbursement for benefits or compensation paid after July 1, 2016, must be submitted within 24 months of the date the benefits or compensation are paid by the carrier or self-insured employer or within 24 months of the date the ERF is determined to be liable. Any requests submitted after these time periods are considered untimely and may not be reimbursed.
SB127 also strikes the requirement in §34A-2-416(2) that requires the ERF to pay extended benefits for wholly dependent individuals in special circumstances. By statute, the ERF cannot be responsible for injuries related to workplace accidents occurring on or after July 1, 1994. The existing language requiring the ERF to be responsible for extended benefits, with no mention of the ERF’s liability for pre-1994 injuries, creates a potential conflict and was removed by SB127.
SB146: Workers’ Compensation Amendments. This bill modifies one of the factors an injured worker must establish in order to prove entitlement to permanent total disability benefits. Specifically, SB146 modifies the basic work activity prong of the permanent total disability analysis. Pursuant to SB146, §34A-2-413(1)(c)(ii) now requires an employee to show that the employee’s impairments or combination of impairments “reasonably” limit the employee’s ability to perform basic work activities.
SB216: Workers’ Compensation Related Amendments This bill requires the Workers’ Compensation Advisory Council to study ways in which hospital costs may be reduced in workers’ compensation cases and to report on its recommendations to the Business and Labor Interim Committee by November 30, 2017. The bill also prohibits hospitals from engaging in “balance billing,” which is defined in the amendment as the practice of charging a person for the difference between the amounts charged by the hospital and the amounts reimbursed by the insurance carrier or self-insured employer. The bill also clarifies that insurance carriers and self-insured employers may contract with hospitals to establish rates. Finally, SB216 provides that for the time period between May 10, 2016, and July 1, 2018, hospitals shall be reimbursed at 85% of the billed hospital fees for covered medical services in instances where the carrier or self-insured employer has not entered into a contract.
Occupational Safety and Health SB33: Occupational Safety and Health Amendments. SB33 modifies §34A-6-203 of the Utah Occupational Safety and Health Act, commonly referred to as the “whistleblower” provision. SB33 allows UOSH to issue an administrative order rather than a report in the event it determines an employer has retaliated against an employee for exercising the rights guaranteed under the Act. If UOSH determines a violation occurred, it shall order the violation to cease and may award appropriate relief, such as reinstatement of the employee to the employee’s former position with back pay. UOSH shall also issue an order finding a violation did not occur if it reaches such a determination. Either party may appeal UOSH’s order to an administrative law judge within the Commission. A party may seek review of a determination made by an administrative law judge with the Commissioner or Appeals Board and may appeal that determination to the Utah Court of Appeals.
Fair Housing SB219: Fair Housing Act Amendments. SB219 enacts a minor change to the Utah Fair Housing Act to allow the Commission’s Antidiscrimination and Labor Division to seek enforcement of a conciliation agreement in the event either party breaches the agreement.
Employment Discrimination SB59: Antidiscrimination Act Revisions. SB59 amends the Utah Antidiscrimination Act to allow an employee to request a reasonable workplace accommodation related to pregnancy, childbirth, breastfeeding, or related conditions. An employer may only refuse such a request if it can demonstrate that granting the accommodation would create an undue hardship, which is defined in the bill as an “action that requires significant difficulty or expense when considered in relation to factors such as the size of the entity, its financial resources, and the nature and structure of its operation.” The bill also provides that an employer may request certification from the employee’s health care provider concerning the medical advisability of the accommodation. An employer, however, may not require certification for more frequent restroom, food, or water breaks. Pursuant to the bill, an employer is not required to permit the employee’s child in the workplace for purposes of accommodating the employee’s request.
SB185: Labor Remedy Amendments. SB185 amends provisions of the Utah Antidiscrimination Act related to discrimination in matters of compensation. The bill requires the Antidiscrimination and Labor Division to report to the Business and Labor Interim Committee on the effectiveness of the Commission and state law in addressing discrimination in matters of compensation by November 1, 2018. The bill also provides that if it is determined that an employee has experienced discrimination in matters of compensation, the presiding officer may award, in addition to back pay, an additional amount equal to the amount of back pay. The presiding officer may award this additional amount unless the respondent shows that the act or omission giving rise to the order was in good faith or the respondent had reasonable grounds to believe the act or omission did not constitute discrimination in matters of compensation.
The Division of Industrial Accidents: What You Should Know About Workers’ Compensation
As one of the divisions within the Utah Labor Commission, the Division of Industrial Accidents is tasked with administering the Workers’ Compensation Act. The Act was established to assist workers who are injured on the job to receive certain medical and lost wage benefits, and that employers get the protection of this being the only remedy available to an injured worker. Two of the primary duties of the Division in administering this Act are to assist injured workers through the process and to ensure that employers maintain workers’ compensation insurance.
The claims section of the Division is tasked with receiving and filing reports regarding injuries, conducting outreach events geared toward educating the public about their rights and protections, and answering questions from employees, adjusters, doctors, and lawyers. Most importantly though, they assist injured workers through the process of receiving necessary medical care, answering questions regarding their rights and benefits, and directing them toward filing an application for hearing if needed. We do not make determinations on the validity of the claims themselves, but rather remain neutral in assisting all of the parties.
The Compliance Section of the Division monitors employers doing business in Utah to confirm that they have workers’ compensation insurance if they have employees. We do this by education and outreach events, but also by investigating claims of non-compliance. If a company is found to be non-compliant with the requirements to maintain workers’ compensation insurance then a penalty is issued. As part of the resolution of the case we verify that the employer has obtained insurance. During fiscal year 2015, 559 penalties were issued that amounted to $1.4 million. Penalty amounts can range from $1,000 (statutory minimum) to upwards of thousands of dollars. The collected penalty amounts go into a special fund, the Uninsured Employers’ Fund, which is set up to pay benefits to certain workers who sustain an injury while working for an uninsured employer.
Some of the other services the Division offers are to oversee the status of employers that are large enough to self-insure, conduct mediation services to parties that have filed workers’ compensation claims with the Adjudication Division, issue workers’ compensation coverage waivers to independent contractors who qualify to opt out of the system, issue extra-territorial certificates for those companies employing Utah employees working outside of Utah, and set and oversee rates medical providers can charge for treating an injured worker.
If anyone involved with a workers’ compensation issue needs assistance, please contact the division at firstname.lastname@example.org.
Trials for Worker’s Compensation Claims: What You Need to Know
Trials of workers compensation claims can be confusing and even stressful, but knowing how the process works may help reduce your anxiety.
Application for Hearing and Order for Answer In almost all cases, the Adjudication Division becomes involved in a workers compensation dispute once an injured worker files an Application for Hearing. The Application is a simple 6 page form that asks for information about the nature of the injury and what compensation and/or medical treatment the injured worker wants. The Application needs to be accompanied by enough medical records to show that the injury is related to his employment. It must also include a general release of medical records as well.
Once the Division receives a completed Application for Hearing, it will review its internal records to identify which workers compensation insurance carrier provided coverage to the employer at the time of the alleged injury. The Division will then assign the case to a judge, give it a case number, and send out an Order for Answer, along with the original Application for Hearing and its accompanying records, to all of the parties involved. This process should take the Division about a week.
Once the employer and carrier receive the Order for Answer, they have 30 days in which to file an Answer. Because companies need to be represented by an attorney in these matters, employers and carriers should forward the Order for Answer to their lawyers as soon as they can.
Discovery The Division will then schedule the matter for a formal hearing which will take place about 5 months after the Answer is filed. This 5 month window gives the parties’ time to conduct discovery into the facts of the case. In other words, you should use this time to gather and exchange information to prepare for the evidentiary hearing. You may ask each other written questions and ask that documents be produced. You may also be required to attend a deposition. At a deposition, you will be placed under oath and asked questions with a court reporter present to record the proceeding. Depositions of other witnesses may also be taken during this period. The employer/insurer can also require an injured worker to attend a medical examination by a doctor of their choosing, sometimes referred to as an Independent Medical Evaluation (“IME”).
It is important for the parties to remember that judges and their clerks must remain impartial. Neither the judges nor their staff is permitted to give legal advice to you about your claim, motions, discovery requests or hearing preparation. Parties are required to follow Division Rules that govern the discovery process. Failure to participate in discovery by failing to file timely and complete responses and/or failure to attend your scheduled deposition and/or failure to attend the medical examination may cause the case to be dismissed. Copies of the Division’s Rules can be found on our website at https://laborcommission.utah.gov/divisions/Adjudication/LawsandRulesAdjudication.html.
Motions A motion is a written request to the judge asking that the judge do something. For example, if you fail to cooperate in the discovery process, the other side may file a motion asking the judge to order you to cooperate.
The rules give the party not making the motion 10 days to file a written response to the motion. If you disagree with what is asked for in a motion, this is your chance to explain to the judge why you disagree.
Hearing The hearing is a formal hearing similar to hearings held in court. You will have the opportunity to tell the judge your side of the case. During the hearing, you will be able to present evidence or witnesses, and will be able to ask witnesses for the other side questions about their testimony. When it is your turn to ask questions, you must only ask questions. You cannot make statements or be argumentative, even if you do not agree with the testimony.
Hearings are scheduled for a minimum of 1.5 hours. You must be on time for your hearing. If you are late, or if you fail to appear, your case may be dismissed.
Witnesses who do not want to voluntarily testify at the hearing may be compelled to attend the hearing by Subpoena. All subpoenas must be prepared using the Commission’s subpoena form and be approved by the judge. Subpoenas must be submitted for approval more than 14 days prior to the scheduled hearing. Once approved, it is your responsibility to have the subpoena served upon the witness. All costs associated with subpoenas and witnesses are the responsibility of the person requesting the subpoena.
It is important to be fully prepared for a hearing. It will not be rescheduled if you find yourself unprepared to present your case or did not anticipate the evidence or legal argument made by the employer/insurer’s legal counsel. The hearing also becomes the final record of your claim. Any subsequent appeal will be based upon the evidence presented at this hearing.
The judge will not announce a decision at the hearing. Within about 60 days of the hearing, the judge will issue a written decision which will be mailed to parties and legal counsel.
Medical Panels If there are disputed medical issues, such as in cases where two doctors disagree as to the cause or treatment of the injured worker’s condition, the judge’s decision may be to refer the medical aspects of your claim to a medical panel. The judge will appoint a medical panel chairperson who is then authorized to bring in other medical experts to evaluate the medical evidence. The injured worker will be required to attend a medical panel examination. Medical panels are paid for by the Commission.
The medical panel will submit a written report to the judge which will be promptly mailed to the parties. Both sides have 20 days to file an objection to the panel’s report being admitted into the hearing record. The judge will consider the medical panel report as part of the final decision in the case. The judge will try to issue a final decision within 60 days of receipt of the objections.
Appealing the Judge’s Order If either party is dissatisfied with the judge’s ruling, either party may file a Motion for Review within 30 days of the date the judge issued the Order. The judge will refer the case for review to the Labor Commissioner or Commission Appeals Board.
The Commissioner or Appeals Board may affirm, amend, modify, reverse the judge’s Order or remand the case back to the judge for further proceedings or findings.
If either party is dissatisfied with the Commissioner or Appeals Board’s final Order, either party may file a Notice of Appeal to the Utah Court of Appeals.
Settlements If you reach an agreement to settle all or part of your claim, the written agreement between you and the employer/insurer must be submitted to the judge for review. Once a settlement is approved by the judge, either all or part of the settled claim is dismissed. If the settlement resolves all the outstanding claims, your Application for Hearing will be dismissed and the hearing will be canceled.
The Utah Antidiscrimination and Labor Division Welcomes Change
Every Spring, without fail, Utah welcomes warmer temperatures and the changes that the new season brings. The Utah Antidiscrimination and Labor Division (UALD) has had its share of significant changes which have provided welcome opportunities to improve our processes, protections, and efficiency. Beginning in 2015, with the landmark passage of SB 296, UALD has worked tirelessly to define and investigate newly protected housing and employment claims based on gender identity and sexual orientation. The law provides protection in housing and employment for people regardless of gender identity or sexual orientation. Additionally, the law prohibits employers from firing employees who, outside of the workplace, lawfully express their opinions about marriage, religion or sexuality, unless they conflict with a legitimate business interest. To date, the Division has received only a handful of these claims in housing and employment respectively.
In addition to these legislative changes, we have welcomed a number of leadership changes to the Division, including new Director, Alison Adams-Perlac. UALD was grateful for and will miss the knowledge and expertise of former Director Kerry Chlarson, and welcomes Ms. Adams-Perlac wholeheartedly.
UALD welcomes these developments and sees them as opportunities to improve the administrative services we provide. With these changes, the Utah Antidiscrimination and Labor Division remains constant in its efforts to deliver legally sound decisions, efficient investigations, and mutually acceptable resolutions to wage, housing, and employment disputes. UALD realizes that the claim process is never easy for either party. Despite these difficulties, we are committed to improving our processes to provide all parties with an efficient complaint process and sound resolution.
Escalators and Elevators: Moving Safely
The Division of Boiler, Elevator, and Coal Mine Safety is part of Utah’s ambitious, industrious and prosperous future. We state this with complete confidence, since we, as Utahns, are always ahead of the curve, not just in industry and innovation, but also in keeping this states employees, employers and the general public safe in the use of boilers, elevators, and escalators. Our Division understands that a safe environment is beneficial for all who reside in the great State of Utah.
Here are a few statistics pertaining to the Division’s section that deals with elevator and escalator safety inspections. These interesting facts highlight the need to put safety first when using elevators and escalators in our daily lives.
Did you know…?
• The Otis Elevator Company carries the equivalent of the world’s population (7.4 billion) in their elevators every five days. • There are 900,000 elevator units in the United States (1,000,000 U.S. and Canada). • Elevators in the United States make 18 billion passenger trips per year. • Elevators in the United States travel 7.2 trillion feet or 1.36 billion miles per year. • The fastest elevator now travels around 30 mph. (the descent is slower that the ascent, because rapidly increasingly air pressure can cause discomfort in the passengers’ ears). • There are 35,000 escalator units in the United States (44,000 U.S. and Canada). • Average number of people carried per escalator per year=3 million. • Based on 35,000 escalators, there are over 105 billion passengers transported per year in the United States. • The myth about jumping just before impact in a falling elevator is just that—myth. You can’t jump fast enough to counteract the speed of falling. And you wouldn’t know when to jump. • There are, on average, 10,000 elevator and 15,000 escalator accidents per year in the United States. • Elevators are safer than cars. An average of 26 people die in elevators each year in the U.S. There are 26 car deaths every five hours.
These statistics demonstrate that each day hundreds of thousands of people in the United States, including many Utahns, use elevators and escalators to get where they need to go. Our Division is extremely proud of the dedication our inspectors exhibit in making secure these modes of transportation and certifying that they are made safe. We work diligently to ensure that our inspectors are trained and protected so that the public can utilize these forms of transportation free of injury or harm. Our Division accepts that they pose unique challenges and we will not be deterred from always putting safety first in all that we do.
Safety Compliance Poster Scam
Please be aware that a scam exists in which local businesses and governmental agencies are being contacted and threatened with fines if they do not comply with “OSHA” safety poster requirements. At times, businesses are told that an “inspector” will arrive in a number of days and pressured to purchase the required posters over the phone to be in compliance. Businesses are then asked for their credit card numbers over the phone or through postal mail.
Private companies may legitimately offer to sell required workplace posters but at no time should these private vendors portray themselves as being affiliated with a government regulatory agency. Legitimate government agencies will not pressure businesses or the public into purchasing posters that are required by law.
If at any time you or your organization are approached or pressured to purchase safety posters in the manner stated above, please contact Department of Commerce, Division of Consumer Protection.
UOSH vs. OSHA
Nearly everyone has heard of the Occupational Safety and Health Administration by its acronym OSHA. Not as many people have heard of the Utah Occupational Safety and Health Division which is known by the acronym UOSH. This article will attempt to briefly explain the differences between UOSH and OSHA.
OSHA is the federal government administration which was created by the Occupational Safety and Health Act of 1970 (OSH Act). The OSH Act is the primary federal law which governs occupational safety and health in the United States. It was enacted by Congress in 1970 and signed into law by President Richard Nixon on December 29, 1970. OSHA’s mission is to “assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.”
Part of the OSH Act encourages states to develop and operate their own occupational safety and health programs. Each state may, if they choose, go through the process to become a “State Plan State” and thereby have jurisdiction over occupational safety and health within that state. To become a State Plan State each state’s occupational safety and health program must be “as effective as” federal OSHA and obtain approval from federal OSHA. Currently, there are 22 state plan states which cover both private and public sector employers and employees, and an additional six state plan states which cover only public sector employers and employees.
The Utah Legislature passed the Utah Occupation Safety and Health Act in 1973 which began the process of Utah becoming a State Plan State. Final approval was officially granted on July 16, 1985 and Utah became an official State Plan State. Since that time, the State of Utah has had its own occupational safety and health program which falls under the authority of the Utah Labor Commission. Utah’s state plan covers both private and public sector employers and employees.
UOSH is the governmental division within the State of Utah which oversees occupational safety and health within Utah. The mission of UOSH is to help “ensure a safe and healthy workplace for every worker in the State of Utah.” UOSH is made up of three separate sections. The Compliance Section is responsible for the enforcement of occupational safety and health standards which Utah has enacted or adopted. The Consultation Section provides confidential, no penalty consultation and education services to eligible businesses in Utah at no charge. The BLS Section conducts one survey on occupational illnesses and injuries and one census on workplace fatalities and provides the data to the federal Bureau of Labor Statistics.
Contrary to many news reports or articles which may have been seen in the media, it is UOSH which investigates occupational safety and health accidents which happen in Utah, not OSHA or Federal OSHA. UOSH employees are State of Utah employees and do not work for the federal government. Federal OSHA does not have jurisdiction over occupational safety and health issues in the State of Utah with the exception of a few federal entities within the state. UOSH contains this jurisdiction. UOSH hopes that this article will help clear up some of the confusion associated with UOSH and what UOSH does within the State of Utah.
Passing of Two Former Commissioners
The Labor Commission is deeply saddened by the passing of two former Commissioners, former Commissioner Stephen Merrill Hadley and Tom Carlson.
Commissioner Stephen Hadley was born June 23, 1932 in Ogden, Utah. After college, he enlisted in the Army and served his country from 1954 – 1956. After his service, he attended the University of Utah and obtained a Juris Doctorate of Law in 1962. In 1967, he was appointed by then Governor Calvin L. Rampton and served as Commissioner on the Utah State Industrial Commission for 29 consecutive years. This Commission would become known today as the State of Utah, Labor Commission. During those years, Commissioner Hadley served with distinction on The International Association of Industrial Accidents and as Chairman of the Executive Committee, Board of Regents, and of the Worker’s Compensation College. Many of the policies instituted under the administration of Commissioner Hadley were instrumental in creating an environment within the Labor Commission in which service to employers and employees is paramount and exists to this day.
After 32 years in the private sector, Commissioner Tom Carlson was appointed as the State Industrial Commissioner by then Governor Norman Bangerter in May 1988. Tom undertook his work very seriously even though it was a great change entering into public service. Commissioner Carlson's always emphasized safety first and was committed to safety and fairness in Utah's workplaces. Commissioner Carlson oversaw the transition of the State Industrial Commission into the Labor Commission. Although he did not continue as commissioner of the new entity, his experience and dedication were vital to creating a strong foundation for the Labor Commission.
The Labor Commission sends our deepest condolences to both families and expresses our appreciation for their many years of exceptional public service.
This quarter the Utah Court of Appeals issued one decision involving a Labor Commission case. The full text of these decisions are available at www.utcourts.gov/opinions/. The decisions issued by the court this quarter dealt with the Utah Workers’ Compensation Act.
Socorro Guzman v. Labor Commission, Circle Four Farms, and Indemnity Insurance Co. of North America (2015 UT App 310; issued December 31, 2015). Mr. Guzman worked for Circle Four Farms performing animal husbandry and other heavy work. He was working for Circle Four when a large boar knocked him to the ground, resulting in a low-back injury. Mr. Guzman claimed permanent total disability compensation stemming from his low-back injury and an evidentiary hearing was held on the claim. The ALJ referred the medical aspects of the claim to an impartial medical panel, which opined that Mr. Guzman was limited from lifting more than 40 pounds occasionally, from lifting more than 20 to 30 pounds frequently, and from repetitive bending, stooping, and squatting. The panel also found that Mr. Guzman’s non-industrial conditions restricted him to limited overhead work and limited forceful work with the arms above shoulder level or away from the body. The panel opined that Mr. Guzman could return to work in a light to medium work setting full time. The ALJ concluded that Mr. Guzman was permanently and totally disabled and entered a preliminary award of such benefits to Mr. Guzman. Circle Four appealed the ALJ’s award to the Appeals Board, which found that Mr. Guzman was not permanently and totally disabled and reversed the award in a 2-1 decision. The Appeals Board found that Mr. Guzman’s impairments did not reasonably limit his ability to work in a broad range of jobs based on his restrictions and the medical panel’s opinion that he could return to work in a medium to light work setting full time. Mr. Guzman sought review of the Appeals Board’s decision from the Utah Court of Appeals. The court concluded that the Appeals Board applied an improper standard to Mr. Guzman’s claim by determining whether his impairments reasonably limited his ability to do basic work activities. The court set the Appeals Board’s decision aside and remanded the matter for further consideration.
Ms. Peterson was working for Fresh Market when she lifted a tray of cakes from a shoulder-height shelf and turned to put them onto her work table. The tray weighed 16.5 pounds and Ms. Peterson lifted the tray with her right hand underneath it and her left hand stabilizing it. As she turned to place the tray on the table, she felt instant pain in her right shoulder that was later confirmed to be a torn rotator cuff. Ms. Peterson filed a claim for workers’ compensation benefits and an evidentiary hearing was held. The ALJ referred the medical aspects of Ms. Peterson’s claim to an impartial medical panel, which determined that Ms. Peterson had a pre-existing condition in her right shoulder as early as 2005 that contributed to her injury. Relying on the medical panel’s opinion, the ALJ applied the more stringent standard of legal causation to Ms. Peterson’s claim and concluded that she did not meet that standard because the work activity did not involve an unusual or extraordinary exertion. Ms. Peterson appealed the ALJ’s decision to the Commission, which noted that Ms. Peterson began working for her employer in 2005. The Commission then remanded the matter for clarification from the medical panel as to the cause of Ms. Peterson’s pre-existing condition. While the Commission was considering the appeal, Ms. Peterson filed another claim based on the same injury alleging that her condition was an occupational disease. On remand, the medical panel explained that 40% of Ms. Peterson’s pre-existing condition was due to her work with Fresh Market. The ALJ consolidated Ms. Peterson’s two claims and then awarded apportioned benefits to Ms. Peterson under the occupational disease theory. Fresh Market appealed the ALJ’s award to the Commission’s Appeals Board. In a 2-1 decision, the Appeals Board reversed the ALJ’s award. The Appeals Board determined Ms. Peterson’s claim should be construed as a discrete work accident and injury rather than an occupational disease and that lifting and placing a 16.5-pound tray of cakes on a table did not involve an unusual or extraordinary exertion. Ms. Peterson sought review of the Appeals Board’s decision from the Utah Court of Appeals. The court agreed that the claim involved a discrete accident and injury, but found that the work activity in question did involve an unusual or extraordinary exertion due to the peculiar manner in which Ms. Peterson lifted the tray. The court therefore set the Appeals Board’s decision aside and remanded the matter for entry of an award of benefits to Ms. Peterson.