CR England v. Labor Commission

2024 UT App 170

THE UTAH COURT OF APPEALS

C.R. ENGLAND INC. AND INDEMNITY INSURANCE COMPANY OF
NORTH AMERICA,
Petitioners,
v.
LABOR COMMISSION AND JEZIAH JOHNSON,
Respondents.

Opinion
No. 20230818-CA
Filed November 15, 2024

Original Proceeding in this Court

Christin Bechmann and Clarissa West,
Attorneys for Petitioners
Richard R. Burke, Attorney for Respondent
Jeziah Johnson

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.

HARRIS, Judge:

¶1 Jeziah Johnson, a long-haul truck driver, was injured when
his truck—then being driven by his co-driver—was in a rollover
accident while traveling at 65 miles per hour. At the time of the
accident, Johnson was resting in the truck’s sleeper berth. He filed
a claim for workers’ compensation benefits, and he was
eventually awarded temporary total disability benefits, treatment
expenses, and travel reimbursement expenses. His employer, C.R.
England (England), and its insurer (collectively, the Company)
seek judicial review of the award, asserting chiefly that the
evidence presented does not sufficiently support it. We decline to
disturb the award and, in addition, we award Johnson his
C.R. England v. Labor Commission

attorney fees and costs incurred in defending against the
Company’s claims in this review proceeding.

BACKGROUND

¶2 In September 2019, Johnson was offered employment with
England, a commercial trucking company. The offer was
conditioned on Johnson obtaining his commercial driver license
(CDL) via England’s driver tuition reimbursement program. Prior
to his employment with England, Johnson had experienced
mental health issues, including mood disorder, post-traumatic
stress disorder, and anxiety. However, during Johnson’s training
period, a medical examiner found Johnson mentally and
physically fit to work as a commercial truck driver. After
obtaining his CDL and passing all examinations, Johnson began
driving for England in early October 2019.

¶3 About eleven weeks later, on December 21, 2019, Johnson
and a co-driver were taking turns driving an England truck
through New Mexico when an accident (the Accident) occurred.
At the time of the Accident, Johnson’s co-driver was driving the
truck and Johnson was resting in the truck’s sleeper berth. The
berth had a safety net that was designed to restrain a passenger in
the event of an accident, but the safety net was not functioning
properly at the time, despite Johnson having made multiple
previous requests to have England repair it. The Accident
occurred while the truck was traveling at approximately 65 miles
per hour; another vehicle apparently failed to yield the right-of-
way, causing the truck to swerve, run off the road, and roll over.
Photos from the scene of the Accident show significant damage to
the truck: the hood was completely torn off of the body, the front
axle was displaced, and the windshield was heavily damaged.

¶4 Following the Accident, Johnson was transported via
ambulance to a local hospital. Johnson reported to emergency
department personnel that he had been “rolling around” in the

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sleeper berth during the Accident but that he was unsure if he had
hit his head. He also reported experiencing low back pain.
Johnson was discharged from the emergency department with
instructions to follow up with his private physician for his
injuries, including an “unspecified” head injury.

¶5 A few days after the Accident, when he was back home,
Johnson went to the emergency department complaining of “rib
pain.” After conducting an exam—including a CT scan of his head
and neck, the findings of which were unremarkable—the
emergency physician diagnosed Johnson with a “concussion
without loss of consciousness.” Johnson also visited an
occupational medicine clinic, where the provider noted, as
relevant here, a concussion, an eyebrow laceration, and back pain.

¶6 Later, in January 2020, Johnson suffered a fall at home, and
he reported that it resulted in “severe pain.” He again went to the
emergency department, and after additional CT scans, the
emergency physician noted “healing” fractures of three ribs and
“healing” fractures of the spine. During a follow-up visit, a
different physician opined that the “fractures are from the motor
vehicle accident/work injury.”

¶7 And in January 2021, Johnson visited a neurologist, who
noted that Johnson complained of “constant, daily headaches”
and that Johnson believed the headache symptoms had “flared
up” his anxiety and depression. The neurologist diagnosed
Johnson with post-concussion syndrome, post-traumatic
headache, and “[e]xacerbation of underlying mood disorder” and
of “anxiety [and] depression.” In particular, the neurologist
concluded that the headaches and exacerbation of psychological
symptoms were “due to the work injury on 12/21/2019.” And the
neurologist indicated that all of his conclusions were “made
within a reasonable degree of medical certainty.”

¶8 In all, Johnson was evaluated by a variety of treating health
care professionals who noted that Johnson was suffering from

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persistent headaches and from psychological issues such as
anxiety and depression. In particular, treating providers assessed
Johnson for ongoing nightmares and flashbacks, anger issues, and
“daily headaches.” In this vein, one psychologist remarked that
Johnson’s “cognitive symptoms are due to emotional distress,
somatic focus, and stressors that have increased since the injury.”

¶9 In addition to his own treating physicians and other health
care professionals, Johnson was examined by two medical experts
retained by the Company: an orthopedic surgeon and a
physiatrist. 1 The orthopedic surgeon, after writing that Johnson

1. The Company refers to the examinations rendered by its
retained medical experts as “independent medical examinations”
or “IMEs,” and the administrative law judge unfortunately
adopted the use of this term in his written findings. This term is
an outdated one that was formerly used to refer to examinations
conducted pursuant to rule 35 of the Utah Rules of Civil
Procedure. See, e.g., Astill v. Clark, 956 P.2d 1081, 1088 (Utah Ct.
App. 1998) (discussing and referring to a rule 35 examination as
an “independent medical examination” or an “IME”). But the
advisory committee’s note to the current version of rule 35—
which applies in labor commission cases, to the extent that labor
commission rules do not contradict it, see Barker v. Labor Comm’n,
2023 UT App 31, ¶ 11, 528 P.3d 1260, cert. denied, 534 P.3d 751
(Utah 2023)—makes clear that such examinations should no
longer be referred to as IMEs. Utah R. Civ. P. 35 advisory
committee’s note (“The parties and the trial court should refrain
from the use of the phrase ‘independent medical examiner,’ using
instead the neutral appellation ‘medical examiner,’ ‘Rule 35
examiner,’ or the like.”); see also Stage Dep’t Store v. Magnuson, 2024
UT App 85, ¶¶ 44–45, 552 P.3d 288 (discussing these issues in a
labor commission case, and noting that rule 35 examinations are
“far from independent due to the conflict of interest arising
between the medical examiners and the insurance companies
(continued…)

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“had not yet secured the safety harness” in the sleeper berth
before the Accident occurred, concluded that Johnson’s rib and
lumbar fractures were not related to the Accident, that the only
injuries that were related to the Accident were a back strain/sprain
and an eyebrow laceration, and that Johnson was capable of
returning to work full-time without restrictions. And the
physiatrist concluded that Johnson had sustained a concussion,
an eyebrow laceration, and a lumbar strain/sprain in the Accident,
but that all of these injuries were “resolved” and Johnson could
return to work full-time without restrictions.

¶10 After reviewing the reports from the Company’s medical
experts, Johnson obtained a sworn declaration from the
neurologist who had examined him in January 2021. In that
declaration, the neurologist opined, among other things, that
Johnson was experiencing “anxiety and depression that were
directly caused by the [A]ccident,” and that all of Johnson’s
“medical care to date ha[d] been necessitated by the [A]ccident,”
including treatment for “resulting symptoms from his concussion
and spinal injuries, along with psychological issues from the
[A]ccident.” The neurologist indicated that he had reviewed the
reports from the Company’s medical experts, and he offered a
response, in relevant part, as follows:

I have observed Mr. Johnson in my clinic over the
past year, including before and after [the
Company’s expert] evaluations were performed. It
is not evident to me what facts these doctors relied
on to reach their conclusions that [Johnson] had

paying their bills”). To its credit, the Labor Commission Appeals
Board correctly refrained from referring to the Company’s
retained experts as “independent” medical examiners, instead
calling them simply “CR England’s medical consultants.” In this
opinion, we similarly refer to them as “the Company’s medical
experts” or something similar.

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C.R. England v. Labor Commission

already fully recovered from the [A]ccident. Suffice
it to say, based on my longitudinal observations of
Mr. Johnson in a clinical setting, I do not believe that
he is medically stable at this time. Mr. Johnson
needs additional care in the form of ongoing
neurological care with necessary medicines,
continued psychological counseling and physical
therapy.

¶11 In September 2021, Johnson filed an application for a
hearing with the Utah Labor Commission, asserting that he had
sustained injuries in the Accident, including a traumatic brain
injury, broken ribs, and a back injury, and he requested an award
of medical expenses, temporary total disability compensation,
permanent partial disability compensation, travel expenses, and
unpaid interest. The case was assigned to an administrative law
judge (ALJ), who held a hearing in April 2022.

¶12 At that hearing, Johnson testified that, as the truck rolled
over during the Accident, he was “thrown around” inside the
sleeper berth and that he struck his head, back, neck, legs, and
shoulders against the bunk, cabinets, and walls of the truck.
Johnson stated that, at the time of the hearing, he was still
experiencing headaches with pain of “3 or 4 out of 10,” which
lasted four to five hours at a time and occurred six days per week,
along with various other types of headaches, including migraines,
occurring at varying frequencies. Johnson indicated that he was
experiencing “daily” cognitive difficulties that made him feel like
he was in a “mental fog,” as well as vision problems along with
light and noise sensitivity. Additionally, Johnson stated that he
had been, and still was, seeking therapeutic counseling services.

¶13 Johnson also testified about his mental health both before
and after the Accident. He acknowledged that he had long
experienced mental health issues, but he testified that his
symptoms had been “well controlled” before applying to work for

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England. He offered his view that, since the Accident, his anxiety
and depression had worsened.

¶14 After the hearing, and given the conflicting medical
evidence, the ALJ referred the matter to a medical panel. A few
months later, the panel issued a report, and it concluded, as
relevant here, that Johnson’s headaches were a result of the
Accident and that his “psychiatric illness . . . ha[d] worsened from
the industrial accident.” The panel noted that Johnson smoked “3-
4 bowls a day of 31% THC flower” cannabis—an amount it
characterized as “high”—and it observed that smoking that much
cannabis “is known to worsen anxiety, mood disorders, and
overall health, and may be contributing to current symptoms.”
But the panel nevertheless concluded that Johnson’s headaches
and worsened psychological symptoms were caused by the
Accident, and that he had not yet reached medical stability either
“regarding his headaches” or “from a psychiatric standpoint.”

¶15 The Company objected to the medical panel report, and it
asked the ALJ to decline to accept the report into evidence and to
appoint a new medical panel. In particular, the Company argued
that the panel’s opinions were contradictory and were not made
to a reasonable degree of probability. The Company was
especially critical of the panel’s discussion of Johnson’s cannabis
use, and it characterized the panel’s report as confusing and
contradictory because the report identified two potential causes—
the Accident and the cannabis use—of Johnson’s symptoms.

¶16 After considering the Company’s objection, the ALJ
referred the case back to the medical panel to answer follow-up
questions regarding Johnson’s cannabis use. In particular, the ALJ
asked the panel whether Johnson’s cannabis use had worsened his
psychiatric symptoms and, if so, to “discuss that worsening in
comparison to” the effect that the Accident “ha[d] had in
worsening” those same symptoms.

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C.R. England v. Labor Commission

¶17 In response, the panel issued an addendum to its report,
and in that addendum the panel indicated that Johnson’s high
cannabis use was indeed “worsening his premorbid psychiatric
illness.” The panel was, however, “unable to quantify the
‘worsening,’” but it “guess[ed]” that Johnson’s cannabis use had
worsened his symptoms by “a significant amount,” because “[t]he
amount of cannabis [Johnson was] consuming a day [was] a lot.”
In the end, though, the panel found that Johnson’s cannabis use
“cannot fully explain the onset or course of his persistent
psychiatric symptoms,” and it therefore concluded that the
cannabis use was “an aggravating factor, rather than an
explanatory factor.” In short, the panel determined that the
Accident and the cannabis use had both contributed to the
worsening of Johnson’s psychiatric issues, stating that the
Accident “did initially worsen” those symptoms but that
Johnson’s “chronic high dose” of cannabis “has further
exacerbated his condition.”

¶18 Following issuance of the medical panel’s addendum, it
was Johnson who objected, claiming that the conclusions the
panel reached in the addendum were “speculative and lacked
both evidentiary and scientific foundation,” and he asked the ALJ
to decline to accept the addendum. The record submitted to us
does not contain any formal ruling by the ALJ on Johnson’s
objection, but the objection was at least implicitly overruled,
because the ALJ discussed the addendum in its eventual ruling.

¶19 Later, after reviewing the medical panel’s submissions and
considering all the evidence, the ALJ issued its Findings of Fact,
Conclusions of Law, and Order. In making its decision, the ALJ
considered evidence from a number of sources, including the facts
of the Accident itself, testimony from the hearing, treating
providers’ notes, medical records, the medical panel reports, and
the Company’s expert reports. As relevant here, the ALJ
concluded that the Accident “caused [Johnson’s] headaches and
exacerbated his pre-existing psychiatric conditions.” The ALJ

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awarded Johnson “historical and recommended future medical
expenses,” temporary total disability compensation on an
ongoing and historical basis (including a 15% weekly wage
increase due to England’s “willful failure to repair the restraint
system” in the truck), and travel expenses.

¶20 After the ALJ issued its ruling, the Company asked the
Labor Commission’s Appeals Board (the Commission) to review
the ALJ’s ruling. In its motion for review, the Company claimed,
among other things, that the medical panel’s initial report should
not have been admitted into evidence and that the ALJ’s ultimate
determination regarding medical causation was unsupported by
the evidence. In his response to the Company’s motion for review,
Johnson claimed that he had “ceased his cannabis use” after
receiving the initial report from the medical panel, but that he still
had “continued depression [and] anxiety.” And in its reply in
support of its motion, the Company asked the Commission—in
light of this new representation from Johnson about cessation of
cannabis use—to remand the case to the ALJ so that the ALJ could
send the matter to the medical panel for a third time.

¶21 A few months later, the Commission affirmed the ALJ’s
decision, and it did so without making any mention of the
Company’s request for a third medical panel review. It adopted
the ALJ’s findings of fact in their entirety, and it provided its own
“summary” of those factual findings. In discussing medical
causation, the Commission noted that “the appropriate inquiry is
whether the work accident contributed in any degree to the
injured worker’s current condition for which compensation is
sought.” And given that there was plenty of evidence supporting
the notion that the Accident was at least a cause (even if not the
only cause) of Johnson’s headaches and worsened psychological
symptoms, the Commission concluded that Johnson had shown
medical causation. In particular, the Commission found “the
panel’s opinion on this point to be persuasive,” “well-reasoned,”
and “supported by” the opinions of several of the treating health

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care professionals, including the neurologist. The Commission
expressly rejected the Company’s assertion that the panel’s
opinion on medical causation was contradictory and “not made
to a reasonable degree of medical probability.” Thus, the
Commission affirmed the ALJ’s ruling in all respects.

ISSUES AND STANDARDS OF REVIEW

¶22 The Company now seeks judicial review of the
Commission’s decision, and it presents two issues for our review.
First, it claims that the Commission’s medical causation
determination is not sufficiently supported by the evidence
presented. “[W]hether the Commission properly found that
medical causation exists is a question of fact we review for
substantial evidence.” YESCO v. Labor Comm’n, 2021 UT App 96,
¶ 13, 497 P.3d 839. We discuss the parameters of the “substantial
evidence” standard of review more fully below, but in summary,
this standard requires that “we defer to the agency if there is a
quantum and quality of relevant evidence that is adequate to
convince a reasonable mind to support a conclusion.” Id.
(quotation simplified).

¶23 Second, the Company asserts that the Commission should
have referred the case to the medical panel for a third time to re-
evaluate Johnson after he claimed he ceased using cannabis. “We
generally review the Commission’s decisions regarding
appointment of medical panels for abuse of discretion,” and
“reverse only if there is no reasonable basis for the decision.”
Nucor v. Labor Comm’n, 2023 UT App 164, ¶ 15, 542 P.3d 951
(quotation simplified).

¶24 In addition to the issues the Company raises, Johnson
raises an issue of his own: he asks that we award him attorney fees
and costs, pursuant to rule 33 of the Utah Rules of Appellate
Procedure, incurred in defending against the Company’s petition
for judicial review. This issue is presented to us in the first

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instance, and we accordingly make our determination as a matter
of law. Cf. Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587
(stating that when an issue is raised for the first time before this
court, “there is no lower court ruling to review” and we must
decide the question in the first instance as a matter of law).

ANALYSIS

I. Medical Causation

¶25 The Company’s first challenge is to the Commission’s
medical causation determination: that Johnson’s headaches and
the worsening of his psychiatric symptoms were medically
caused by the Accident. In particular, the Company asserts that
the Commission’s determination is not supported by substantial
evidence. Ultimately, for the reasons discussed, we reject the
Company’s challenge. Before addressing the merits of that
challenge, however, we discuss certain preliminary issues and
standards, including the legal standards governing both
“substantial evidence” and “medical causation,” as well as our
understanding of the scope of the Company’s challenge.

A. Preliminary Issues and Standards

¶26 The “substantial evidence” standard is the metric appellate
courts use to evaluate the soundness of an administrative
agency’s factual findings, including determinations regarding
medical causation. See Provo City v. Utah Labor Comm’n, 2015 UT
32, ¶ 8, 345 P.3d 1242 (“[A] challenge to an administrative
agency’s finding of fact is reviewed for substantial evidence.”);
YESCO v. Labor Comm’n, 2021 UT App 96, ¶ 13, 497 P.3d 839
(noting that an agency’s determination that medical causation is
present “is a question of fact we review for substantial evidence”).
This standard is a deferential one: “in conducting a substantial
evidence review, we do not reweigh the evidence and
independently choose which inferences we find to be the most

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reasonable.” Provo City, 2015 UT 32, ¶ 8 (quotation simplified).
“Instead, we defer to an administrative agency’s findings because
when reasonably conflicting views arise, it is the agency’s
province to draw inferences and resolve these conflicts.” Id.
(quotation simplified); see also YESCO, 2021 UT App 96, ¶ 19
(“Merely pointing to conflicting facts and evidence is insufficient
to undermine substantial evidence supporting the finding.”
(quotation simplified)). Moreover, “substantial evidence” need
not necessarily constitute a preponderance of the evidence—our
supreme court has made clear that substantial evidence is “more
than a mere scintilla of evidence though something less than the
weight of the evidence.” Martinez v. Media-Paymaster Plus, 2007
UT 42, ¶ 35, 164 P.3d 384 (quotation simplified). In short, “a
decision is supported by substantial evidence if there is a
quantum and quality of relevant evidence that is adequate to
convince a reasonable mind to support a conclusion.” Provo City,
2015 UT 32, ¶ 8 (quotation simplified).

¶27 And our “medical causation” inquiry is similarly broad: a
claimant need only “show that an industrial accident was a cause
of the condition or injury requiring treatment.” See YESCO, 2021
UT App 96, ¶ 15 (quotation simplified); see also Cox v. Labor
Comm’n, 2017 UT App 175, ¶ 18, 405 P.3d 863 (stating that a
claimant “satisfies the medical causation standard” by “proving
that the industrial accident is a cause—as opposed to the cause—
of the condition requiring treatment”), modified on other grounds by
Morris v. Labor Comm’n, 2021 UT App 131, 503 P.3d 519. After all,
the purpose of the medical causation requirement “is to ensure
that there is a medically demonstrable causal link between” the
work-related incident and the employee’s injuries. See Allen v.
Industrial Comm’n, 729 P.2d 15, 27 (Utah 1986). Thus, “a correct
formulation of this standard asks whether the industrial accident
contributed to the employee’s medical condition in any degree,
such as by aggravating a preexisting condition, or . . . by
aggravating other contributing non-industrial factors.” YESCO,
2021 UT App 96, ¶ 15 (quotation simplified).

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¶28 In this proceeding, it falls to the Company—as the
proponent of judicial review—to meet the burden of persuading
us that no substantial evidence supports the Commission’s
medical causation finding. See State v. Nielsen, 2014 UT 10, ¶ 35,
326 P.3d 645 (referring to “an appellant’s broader burden of
overcoming the weighty deference granted to factual
determinations in the trial court”). In years past, appellants
challenging the sufficiency of the evidence were expressly
required, in their opening brief, to marshal the evidence
supporting the challenged ruling and explain why that evidence
was insufficient. See id. ¶ 37 (noting that our supreme court had
“sometimes . . . identified a marshaling deficiency as a ground for
an appellant’s procedural default”). To properly marshal the
evidence, “the challenging party must temporarily remove its
own prejudices and fully embrace the adversary’s position; he or
she must play the devil’s advocate.” Peterson Hunting v. Labor
Comm’n, 2012 UT App 14, ¶ 15, 269 P.3d 998 (quotation
simplified). Our supreme court has since clarified, however, that
a party does not lose its appeal by default simply for failure to
marshal. See Nielsen, 2014 UT 10, ¶ 41. But the court “reaffirm[ed]
the traditional principle of marshaling as a natural extension of an
appellant’s burden of persuasion,” and it stated that “a party
challenging a factual finding or sufficiency of the evidence . . . will
almost certainly fail to carry its burden of persuasion on appeal if
it fails to marshal.” Id. ¶¶ 41–42. These principles apply in
administrative agency cases, just as they do in appeals from
district courts. See Peterson Hunting, 2012 UT App 14, ¶ 15.

¶29 As a final preliminary matter, we make clear our
understanding of the scope of the Company’s challenge to the
medical causation finding, and specifically our understanding of
the Company’s position regarding the evidentiary status of the
medical panel reports. As we understand and interpret the
Company’s opening brief, the Company is asserting that the
Commission’s medical causation finding is not supported by
substantial evidence; as a corollary to this argument, the

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Company maintains that the reports from the medical panel, for
various reasons, do not constitute substantial evidence. In making
this argument, the Company appears to assume that the medical
panel reports are properly in evidence; that is, the Company offers
reasons why it considers those reports unpersuasive and
insubstantial, but it does not appear to be challenging the ALJ’s or
the Commission’s decision to admit those reports into evidence or
to decline to strike them from the record. To be sure, the Company
mentions in passing—in its summary of the argument and in its
conclusion—that it was “error for the ALJ to admit the Medical
Panel report as a whole into evidence.” But the Company did not
list this issue as one of the issues it is presenting for our review,
and it did not substantively brief this issue in the body of its brief.
Thus, we interpret the Company’s brief as not challenging the
decision to admit the medical panel reports into evidence; at a
minimum, any such argument is inadequately briefed. For
purposes of our substantial evidence review, we therefore
consider the medical panel reports to be part of the record.

B. Substantial Evidence of Medical Causation

¶30 With these background principles in mind, we now turn to
the merits of the Company’s challenge to the Commission’s
medical causation finding. This challenge has two parts: the
Company challenges the medical causation finding regarding
both (1) the worsening of Johnson’s psychiatric symptoms and
(2) Johnson’s headache symptoms.

1. Worsening of Psychiatric Symptoms

¶31 Ample evidence supports the Commission’s finding that
the Accident contributed to the worsening of Johnson’s
psychiatric symptoms. For starters, there’s Johnson’s own hearing
testimony, in which he stated that his preexisting symptoms had
been “well controlled” before the Accident but that since then, his
anxiety and depression have worsened. In its reply brief, the
Company derides this testimony as self-serving and “uncredible,”

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but credibility determinations are for the factfinder to make, see
Bade-Brown v. Labor Comm’n, 2016 UT App 65, ¶ 19, 372 P.3d 44
(“It is the Commission’s role as the ultimate fact-finder to weigh
the evidence and make credibility determinations.”), and the
Company gives us no good reason to second-guess the
Commission’s decision to credit Johnson’s testimony.

¶32 In addition to Johnson’s own testimony, several of the
treating health care professionals—including most notably the
neurologist—concluded that the Accident contributed to the
worsening of Johnson’s symptoms. After examining Johnson, the
neurologist concluded that the worsening of Johnson’s
psychological symptoms was due, at least in part, “to the work
injury on 12/21/2019.” And the neurologist submitted a
declaration in rebuttal to the Company’s expert reports, in which
he again opined that Johnson was experiencing “anxiety and
depression that were directly caused by the [A]ccident.” In its
reply brief, the Company criticizes the treating professionals’
reports, asserting that they are unpersuasive because, among
other reasons, they relied to a significant degree on Johnson’s own
self-reporting of his symptoms. But assessing the persuasiveness
of admitted evidence is precisely the job of the factfinder, and
given our standard of review we are not in a position to second-
guess the Commission’s choice to rely upon the medical evidence
from Johnson’s treating professionals.

¶33 Finally, the Commission relied upon the reports from the
medical panel. As noted, the panel clearly concluded—both in its
initial report and in its addendum—that the Accident had been at
least a contributing cause to the worsening of Johnson’s
psychological symptoms. And, as noted, the Company does not
here challenge the inclusion of those reports in the universe of
evidence to be considered by the Commission.

¶34 The evidence described in the preceding paragraphs is
quite clearly enough to surmount the deferential “substantial

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evidence” standard. But the Company did not tell us about much
of this evidence in its opening brief—we had to learn about a lot
of it from Johnson’s opposition brief and from our own review of
the record. Stated another way, the Company made no effort, in
its opening brief, to marshal the evidence in support of the
Commission’s finding and to explain why that evidence was not
substantial enough to meet the standard. As mentioned above,
when a party who bears the burden of appellate persuasion fails
to marshal the evidence in its opening brief, that party “will
almost certainly fail to carry its burden of persuasion on appeal.”
See Nielsen, 2014 UT 10, ¶ 42. That is the case here.

¶35 Instead of trying to marshal the evidence, the Company
spent considerable energy in its opening brief attacking the
persuasiveness of the medical panel reports and emphasizing the
significant amount of cannabis that Johnson (at least for a time)
was consuming. We address these arguments below, but before
doing so we note that even if the medical panel reports were not
part of the evidentiary record, the other evidence in the record—
Johnson’s own testimony and the reports and evidence from the
treating professionals, most notably the neurologist—would
likely be enough, on its own, to constitute substantial evidence
supporting the medical causation finding. See Horning v. Labor
Comm’n, 2023 UT App 30, ¶ 33, 529 P.3d 352 (“Because the
Commission’s findings were based on not only the report of the
medical panel—which itself constituted substantial evidence
before the Commission—but also the corroborating reports of
other doctors and the entirety of the medical record, we conclude
that the Commission’s findings were supported by substantial
evidence and should not be disturbed.”).

¶36 With regard to the medical panel reports, the Company
argues that they are unpersuasive because they establish only a
possibility—and not a medical probability—that the Accident
worsened Johnson’s symptoms. We disagree. While the medical
panel did not use the phrase “medical probability,” it spoke in

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clear declarative sentences (“It is our medical opinion [that
Johnson’s symptoms] worsened from the industrial accident,”
and “We believe [Johnson’s] industrial accident did initially
worsen his” symptoms) in reaching its finding regarding medical
causation of Johnson’s worsened symptoms, and in setting forth
this finding it did not generally use words like “may,” “might,”
“could have,” or “possibility.” 2 Our reading of the medical panel
reports is simply different from the Company’s. 3

¶37 The Company also argues that the medical panel reports
are unpersuasive for other reasons, criticizing the panel for—in its
view—not adequately explaining away certain of the Company’s
arguments, including particularly the Company’s emphasis on
Johnson’s cannabis use. But these arguments go to the weight the
factfinder gives to the panel reports, and are arguments better
suited to an evidentiary hearing before a factfinder than to
appellate challenges. The ALJ and the Commission found these
arguments unpersuasive, and given the standard of review, we
are not inclined to second-guess the factfinder’s choice about how
much weight to give the panel’s conclusions.

2. In its initial report, the panel did state that Johnson’s cannabis
use “may be contributing to current symptoms.” But after it was
asked to clarify, the panel made a more definitive statement in its
addendum report: that Johnson’s cannabis use was “worsening”
his psychological symptoms and that it “ha[d] exacerbated his
condition.” As we read the record, all of the panel’s ultimate
conclusions were phrased in clear and definitive language.

3. Moreover, and in any event, the neurologist did use the phrase
“medical certainty,” stating in his report that all of his opinions—
including the ones about Johnson’s worsened symptoms being
caused by the Accident—were “made within a reasonable degree
of medical certainty.” The Company made no mention of this fact
in its opening brief.

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¶38 Finally, the Company asserts that Johnson’s cannabis use
broke the “chain of causation” and therefore should be considered
the only medical cause of his worsened psychological symptoms.
In support of this contention, the Company points to case law
emphasizing the claimant’s burden to “demonstrate that the
subsequent aggravation is the ‘natural result’ of the primary
workplace injury or accident.” 4 See Oliver v. Labor Comm’n, 2013
UT App 301, ¶ 12, 318 P.3d 777 (quotation simplified); accord
Washington County School Dist. v. Labor Comm’n, 2013 UT App 205,
¶ 24, 309 P.3d 299. The Company argues that Johnson’s significant
cannabis use was “not a natural result of” the Accident. But that
isn’t the relevant question: no one contends that Johnson’s
cannabis use was caused by the Accident. The question is whether
Johnson’s worsened symptoms are a “natural result” of the
Accident. And as already noted, plentiful evidence supports this
conclusion, including the medical panel’s nuanced conclusion
that both the Accident and Johnson’s cannabis use contributed to
the worsening of Johnson’s psychological symptoms, and its
determination that Johnson’s “cannabis use cannot fully explain
the onset or course of his persistent psychiatric symptoms.”

4. Although the Company’s argument, at times, sounds like a
“superseding cause” argument, the Company at no point cites
superseding cause case law from the tort context and at no point
makes any argument that the superseding cause doctrine from
tort law applies in the workers’ compensation context. There is
reason to be skeptical of such an argument. See Helf v. Chevron
U.S.A., Inc., 2009 UT 11, ¶ 17, 203 P.3d 962 (“The primary objective
of workers’ compensation has been to remove industrial
negligence, in all its forms, from the concept of the law of tort.”
(quotation simplified)). But because no party is asking us to weigh
in on the question, we express no opinion about whether that
doctrine applies in workers’ compensation cases, and we do not
purport to apply it here.

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C.R. England v. Labor Commission

¶39 For all of these reasons, we reject the Company’s challenge
to the Commission’s factual finding that the worsening of
Johnson’s psychological symptoms was medically caused by the
Accident. Substantial evidence supports this finding, and for this
reason we decline to disturb it.

2. Headaches

¶40 Ample evidence also supports the Commission’s finding
that the Accident medically caused Johnson’s headaches. But
before we discuss some of that evidence, we first address the
Company’s representation, in its brief, that the Accident was one
in which “the head did not suffer any injury or trauma” and that
“the evidence shows” that Johnson’s “head did not strike
anything during [the Accident].” At best, this is an aggressive
mischaracterization of the evidence; at worst, it is an outright
misrepresentation.

¶41 Johnson was resting unrestrained—due to the Company’s
failure to fix the safety net—in the truck’s sleeper berth when the
truck rolled over while going some 65 miles per hour. As a matter
of simple common sense, it is difficult to imagine—simply from
the undisputed mechanism of the Accident—that Johnson didn’t
hit his head on something.

¶42 But even aside from the rather obvious nature of the
situation, the overwhelming weight of the testimony and medical
evidence indicates that Johnson did indeed strike his head during
the Accident. Again, for starters, Johnson testified under oath at
the hearing that he was “thrown around” inside the sleeper berth
during the Accident and that he “remember[ed] striking [his]
head” and other body parts against “the bottom of the top bunk,
bottom bunk, the cabinets, the back wall, and the side walls.” To
be sure, when Johnson first appeared in the emergency
department immediately after the Accident, he could not
remember if he had hit his head. But he certainly didn’t deny
hitting his head, and his later sworn hearing testimony was

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C.R. England v. Labor Commission

unequivocal on the point. Not only that, the Company’s own
retained orthopedic surgeon noted, in his examination report, that
Johnson reported “striking his head” during the Accident.

¶43 The medical records also support the conclusion that
Johnson hit his head during the Accident. In the emergency
department on the day of the Accident, doctors found an
“abrasion” on Johnson’s “left upper brow,” a finding consistent
with the record from the occupational medicine clinic ten days
later, where it was noted that Johnson had “lacerations on the left
eyebrow . . . which [were] healing.” Even the Company’s retained
experts—both of them—found that Johnson had sustained a
“[l]eft eyebrow laceration” in the Accident. One wonders how
Johnson could have gotten a laceration on his eyebrow during the
Accident without hitting his head on something.

¶44 In addition, multiple health care professionals who treated
Johnson in the weeks and months after the Accident noted that
Johnson had an “unspecified” head injury, a “concussion without
loss of consciousness,” or “post-concussion syndrome.” While the
medical panel eventually found that Johnson had not sustained a
concussion, this other evidence—especially viewed in tandem
with Johnson’s testimony and the eyebrow laceration—is
nevertheless strongly supportive of the notion that Johnson hit his
head during the Accident. Given the state of the record, we are
disappointed by the Company’s declarative assertion—
unaccompanied by any marshaling of evidence to the contrary—
that “the evidence shows” that Johnson’s “head did not strike
anything” during the Accident.

¶45 As for the Company’s overarching challenge to the medical
causation finding regarding headaches, the record submitted to
us contains ample evidence supporting the Commission’s
finding. Again, we begin with Johnson’s sworn hearing
testimony: that after the Accident, he began experiencing
headaches that were different from headaches he had suffered

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C.R. England v. Labor Commission

before, and that they had persisted on a regular basis up to the
date of the hearing. The Company discounts this evidence as self-
serving and unsupported by “objective testing,” but the testimony
is part of the record and the factfinder is entitled to credit it.

¶46 In addition to Johnson’s own testimony, the neurologist
and the physicians on the medical panel all found that Johnson’s
headaches were caused by the Accident. The neurologist opined,
to a “reasonable medical certainty,” that Johnson’s headaches
were “due to the work injury on 12/21/2019.” Notably, the
Company made no mention of this evidence in its opening brief,
despite its responsibility to marshal the evidence if it is to meet its
appellate burden of persuasion. And the medical panel noted that
Johnson “had no history of severe or chronic headaches prior to
the [A]ccident and his headaches became severe and chronic after
the injury,” and it therefore concluded that Johnson’s “headaches
[were] industrially related.”

¶47 The Company assails the medical panel’s conclusion as
insufficiently substantial, asserting that the panel did not conduct
any “objective testing” and that it did not find that Johnson had
suffered a concussion or other brain injury. In addition, the
Company criticizes the panel for relying on Johnson’s testimony
regarding the onset of his headaches, arguing that Johnson’s self-
report merely supports “correlation” and not “causation.” These
arguments—while perhaps decent trial-level arguments—are
simply not persuasive in the current procedural posture, where
we are evaluating the Commission’s factual finding and where we
are required to defer to those findings so long as they are
supported by credible evidence. These arguments ultimately
amount to little more than complaints about the amount of weight
the factfinder elected to give to certain items of admitted
evidence, and such arguments find little traction given our
standard of review. See YESCO v. Labor Comm’n, 2021 UT App 96,
¶ 18, 497 P.3d 839 (“As the ultimate factfinder, it is the
Commission’s role to weigh the evidence, resolve any conflicts,

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C.R. England v. Labor Commission

and draw reasonable inferences therefrom in finding medical
causation.” (quotation simplified)).

¶48 Accordingly, we reject the Company’s challenge to the
Commission’s finding that Johnson’s headaches were medically
caused by the Accident.

II. A Third Remand to Medical Panel

¶49 Next, the Company challenges the Commission’s implicit
rejection of its request—made in the reply brief in support of its
motion for review—that the Commission send the matter to the
medical panel, for a third time, for reevaluation in light of
Johnson’s unverified contention that he had ceased cannabis use
after issuance of the panel’s initial report. 5 The Commission has
“discretionary power” from our legislature regarding the
appointment of medical panels. Nucor v. Labor Comm’n, 2023 UT
App 164, ¶ 15, 542 P.3d 951 (quotation simplified). We therefore
review decisions regarding referrals to medical panels for abuse
of discretion, and we decline to disturb them as long as the
decision was made within the “range of acceptable” choices. Id.
(quotation simplified). In other words, as long as there was a
“reasonable basis” for the Commission’s decision, we will affirm.
Id. (quotation simplified).

¶50 Here, we discern no abuse of discretion in the
Commission’s implicit decision to decline to send the matter to
the medical panel for a third time. The panel had already
reviewed Johnson’s case twice, and it had twice concluded that
the worsening of Johnson’s psychological symptoms was caused,

5. Johnson argues that the Company did not preserve the issue of
whether the case should have been sent back to the medical panel
for a third time. However, as noted, the Company did raise the
issue, albeit in an unconventional way. Thus, we consider the
issue preserved for our review, and we proceed to consider the
Company’s challenge on its merits.

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C.R. England v. Labor Commission

at least in part, by the Accident. The only new fact that might have
changed the calculus was the assertion—made by Johnson’s
counsel in an opposition brief—that following the issuance of the
panel’s first report, Johnson had stopped using cannabis. Since no
testimony or evidence was taken on this point, it is unclear
whether Johnson was claiming to have ceased all cannabis use, or
merely cut back. Moreover, in the same brief, Johnson’s counsel
represented that, despite the change in cannabis use, Johnson was
still suffering from “continued depression [and] anxiety.”

¶51 The Company has not borne its burden of demonstrating
abuse of discretion here. Its analysis on this point in its principal
brief is composed of a single paragraph, and therein the Company
simply fails to explain how the “fact” of Johnson’s cessation or
diminishment of cannabis consumption—even if true—could
potentially affect the Commission’s determination of medical
causation here in a way that would benefit the Company’s
position. For purposes of the Commission’s analysis, it appeared
to assume that Johnson was using significant amounts of
cannabis; certainly, it made no mention, in its written ruling, of
Johnson’s new extra-record assertion that he had ceased cannabis
use. If one assumes (as the Company is apparently asking us to
do) the veracity of Johnson’s extra-record assertions—that he had
ceased using cannabis and that it hadn’t made much difference in
the severity of his symptoms—it is difficult to see how the new
evidence could have benefited the Company’s position.

¶52 Indeed, in this situation, there was little reason to believe
that the outcome of a third report would have been materially
different from the first two. And because this particular remand
would likely have necessitated an entirely new examination of
Johnson by the panel (as opposed to simply having the panel
answer follow-up questions regarding its previous examination),
the delay in granting the Company’s remand request may have
been considerable. In this context, we afford the Commission
substantial deference in determining, on the facts of each

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C.R. England v. Labor Commission

individual case, whether a particular change in medical
circumstances is significant enough to warrant pausing the case
yet again to seek additional clarification from the medical panel.

¶53 Here, we can readily envision a “reasonable basis” for the
Commission’s implicit denial of the Company’s request, see id.
(quotation simplified), and therefore we conclude that the
Commission acted within its discretion to decline the Company’s
invitation for further consultation with the panel.

III. Attorney Fees

¶54 The final issue we must confront is Johnson’s request that
we award him attorney fees pursuant to rule 33 of the Utah Rules
of Appellate Procedure. That rule states, in relevant part, that

if the court determines that a motion made or appeal
taken under these rules is either frivolous or for
delay, it will award just damages, which may
include single or double costs . . . and/or reasonable
attorney fees, to the prevailing party.

Utah R. App. P. 33(a). The term “frivolous” is given a specific
definition: “a frivolous appeal . . . is one that is not grounded in
fact, not warranted by existing law, or not based on a good faith
argument to extend, modify, or reverse existing law.” Id. R. 33(b).
Johnson asserts that the Company’s appeal is “frivolous” because
it “was not grounded in fact.” And in particular, Johnson points
out that the Company’s brief “never examined the underlying
evidence that is required under substantial evidence review” and
“made no attempt to marshal the evidence, or to even identify the
evidence that supported” the Commission’s findings. Johnson’s
assertions are entirely correct, and—even keeping in mind our
institutional hesitancy to award fees pursuant to rule 33, see
Johnson v. Nationstar Mortgage LLC, 2020 UT App 127, n.6, 475 P.3d
140 (stating that “the imposition of . . . sanction [under rule 33] is
a serious matter and only to be used in egregious cases, lest the

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C.R. England v. Labor Commission

threat of such sanctions should chill litigants’ rights to appeal
lower court decisions” (quotation simplified))—we conclude that
an award of fees is appropriate here, for several reasons.

¶55 First, we are troubled by the Company’s
mischaracterization of the facts of the case regarding whether
Johnson hit his head during the Accident. We acknowledge that
the medical panel found that Johnson had not sustained a brain
injury. But that is a different question from whether he struck his
head, and on that score the record is quite clear: Johnson did strike
his head as he was being “thrown around” unrestrained in the
sleeper berth during the high-speed Accident. Often, the records
submitted to us in workers’ compensation cases are lengthy,
voluminous, and dense with medical jargon. We depend on the
attorneys who practice regularly in this area of the law—a
category that includes the Company’s attorneys—to assist us by
accurately and helpfully describing the contents of those records
in their briefs. And when attorneys find it necessary to resort to
mischaracterization of facts, we think it fair to take that as an
indication that the attorneys’ position is “not grounded in fact.”
See Utah R. App. P. 33(b).

¶56 Second, the Company made no effort to marshal the
evidence that supported the Commission’s challenged findings.
When a party who is challenging the sufficiency of the evidence
supporting factual findings fails to marshal the evidence, it makes
the opponent’s job—not to mention the court’s job—much more
difficult and time-consuming. We certainly stop well short of
holding that a failure to marshal the evidence, by itself, will
warrant an award of attorney fees pursuant to rule 33. But in
tandem with other factors, and depending on the nature of the
case, failure to marshal might be an indication that the arguments
made to an appellate court are “not grounded in fact” or “not
warranted by existing law.” Id. And we think it is here.

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C.R. England v. Labor Commission

¶57 Third, the “substantial evidence” challenge raised by the
Company was utterly meritless. Once we dug into the record
ourselves (with assistance from Johnson’s brief) given the lack of
marshaling, we discovered ample evidence supporting the
Commission’s challenged findings, including the mechanism of
the Accident itself, Johnson’s own sworn testimony, and records
from treating professionals, most notably the neurologist. While
the Company devoted most of its opening brief to criticism of the
medical panel reports, the Company failed to mention these other
key items of evidence in the record that—together and likely even
in the absence of the medical panel reports—constitute
sufficiently substantial evidence to support the challenged
findings. Thus, on its merits, especially given the deferential
standard of review, the Company’s main argument was simply
not well taken. Moreover, where, as here, there exists a large
amount of supporting evidence that should have been marshaled
and was not, the failure to marshal takes on added significance.
We find it difficult to imagine that the Company was unaware of
the contradictory evidence when it filed its opening brief.

¶58 Accordingly, we conclude that the Company’s petition for
judicial review is “frivolous” under the definition of that term
employed in rule 33(b). We therefore grant Johnson’s motion for
an award of attorney fees and single costs, and we send this
matter back to the Commission for quantification of that award.

CONCLUSION

¶59 Substantial evidence exists, in this record, to support all of
the Commission’s findings that the Company challenges in this
proceeding. And the Commission did not abuse its discretion in
declining the Company’s invitation to seek the medical panel’s
input for a third time. We therefore decline to disturb the
Commission’s award of benefits to Johnson.

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C.R. England v. Labor Commission

¶60 Furthermore, given our conclusion that the Company’s
petition for review is “frivolous,” we grant Johnson’s motion for
an award of attorney fees and single costs, and we send this
matter back to the Commission for determination of the amount
of those fees and costs.

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