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Gary Atkin

Posts: 10
A swimming pool attendant for Salt Lake County had a work-related back injury in 2002 which permanently aggravated a preexisting back surgery and resulted in a 12% whole person impairment, 10% attributed to the prior injury and 2% attributed to the 2002 injury.  He was given work restrictions of "no lifting over 50 pounds."  He returned to his work and was able to perform his required work with those restrictions, occasionally taking pain medication.  In 2005, he was installing a 300 pound circulation pump.  He first used a crane to remove the pump from the truck and a dolly to transport it to the pool.  At the pool, he had to manipulate the pump into place y straddling the pump and bending over to jerk it up to line it up for the installation.  When he jerked up the edge to line it up, he felt immediate pain in his back.  His physician placed him on new and permanent work restrictions of no prolonged walking or standing; no prolonged sitting; no repeated bending, stooping, lifting or twisting; no diving; no driving while taking narcotic medications; and imposed lifting restrictions of no more than 10-25 pounds.  Since his job with Salt Lake County required him to be able to lift more than 25 pounds, he was unable to continue working with them and, although he sought other employment, he was not hired, and he sought disability benefits.  The County argued that they were entitled to a 15% reduction in the rate of compensation because the employee "willfully disobeyed a safety order" when he engaged in the activities of manipulating the position of the heavy pump.  The Commission ruled that his actions were "intentional" and "negligent" but that did not make them "willful" in order to impose the 15% reduction.  The Commission declared that requires a deliberate defiance of a reasonable rule established to prevent serious bodily harm and that neither "negligence" nor even "gross negligence" rises to that level.  The Court of Appeals agreed.  Salt Lake County v. Labor Commission and John Wisner, 208 P. 3d 1087 (Utah App., 2009)
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