Nielsen v. Labor Commission

2020 UT App 2

THE UTAH COURT OF APPEALS

JEFFERY RYAN NIELSEN,
Petitioner,
v.
LABOR COMMISSION, WALMART STORE, AND
NEW HAMPSHIRE INSURANCE COMPANY,
Respondents.

Opinion
No. 20180823-CA
Filed January 3, 2020

Original Proceeding in this Court

Stony V. Olsen and Michael G. Belnap, Attorneys
for Petitioner
David H. Tolk and Cody G. Kesler, Attorneys for
Respondents Walmart Store and New Hampshire
Insurance Company

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Jeffery Ryan Nielsen requests that we set aside the Labor
Commission Appeals Board’s (the Board) decision denying his
claim for workers’ compensation benefits. We decline to disturb
the Board’s decision.

BACKGROUND

¶2 Nielsen was employed by Walmart between March
2011 and November 2016. In 2013, Nielsen suffered a low-back
injury, outside of the employment context, while helping
his landlord lift a refrigerator. After being released from
Nielsen v. Labor Commission

work for eight days to recover from the injury, Nielsen
was reassigned from his position as an order-filler to a
position as a forklift driver, though “he continued to assist
with order pulling during the workday.” In 2015, Nielsen
consulted several physicians regarding his continuing low-back
pain. An MRI conducted in August 2015 “showed a diffuse
central-disc protrusion at the L5-S1 level with mild impingement
on both exiting nerve roots,” as well as “mild encroachment
on the L5-S1 neural foramina with degenerative facet changes
at the L4-5 level.” Nielsen’s treating physicians, Michael
Derr and Critt Aardema, opined that Nielsen’s employment
“caused or aggravated his low back condition.” Specifically,
following an appointment in December 2016, Dr. Derr stated,
“I feel that the patient’s current work situation is contributing
to his back symptoms,” and following an appointment in
February 2016, Dr. Derr again noted that Nielsen’s job
“likely contributed to his back pain since he was lifting
frequently.” Dr. Derr therefore concluded that there was a
“medical causal relationship” between Nielsen’s “industrial
accident/cumulative trauma” and the back pain for which he
was being treated.

¶3 On November 7, 2016, Nielsen filed an application for
hearing requesting temporary total and permanent partial
disability compensation on the ground that he sustained
“repetitive injury” as a result of “harmful exposure” arising from
his employment with Walmart. Walmart responded by asserting
that Nielsen’s injury was preexisting and that he could not
establish that it was work-related.

¶4 On July 18, 2017, at Walmart’s request, Dr. Richard
Knoebel conducted a medical evaluation of Nielsen, in which
he diagnosed Nielsen with “[n]onspecific low back pain
without reasonable industrial cause, accident or injury.” In
conducting his examination, Dr. Knoebel had access to Nielsen’s
medical records through only the December 2015 visit. However,
he also had a note that Nielsen had seen Dr. Derr in February

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2016 and that Dr. Derr reported at that visit that “repetitive
and cumulative trauma while working at Walmart” had
contributed to his condition. Contrary to Dr. Derr’s opinion, Dr.
Knoebel believed Nielsen’s lumbar condition to be degenerative
rather than caused by a specific injury and attributed it
to “nonindustrial” factors including smoking, obesity, and
heredity. He opined that “[t]o a reasonable degree of
medical probability,” the MRI scan findings are “consistent
with degenerative changes of the low back and low back
pain without specific accident or injury” rather than industrial
injury. He further explained that the MRI findings are “common
in general population . . . and not specific to [Nielsen’s] work”;
that his work at Walmart was not the type that could
be expected to “cause[], contribute[] to or permanently
aggravate[]” a degenerative lumbar condition; and that
such activities, “in fact, may be beneficial.” He concluded that
Nielsen had “0% industrial impairment” and was able to return
to work.

¶5 An administrative law judge (ALJ) held a hearing on
September 6, 2017, in which she entered interim findings of fact
that included a list of treatments Nielsen had received. In
discussing Dr. Derr’s opinions, the ALJ referred only to the
December 2015 medical visit, without mentioning the February
2016 visit, but cited the medical records of both visits and
acknowledged Dr. Derr’s opinion that Nielsen’s injuries were
caused by his work at Walmart. Due to the conflict in
the medical opinions, the ALJ referred the case to a medical
panel.

¶6 The medical panel reviewed “all of the medical records”
it received, including seventy-two pages of “[i]ndexed medical
records” from “7 healthcare providers and medical facilities.”
These records included the notes from both the December
2015 visit and the February 2016 visit with Dr. Derr. Like the
ALJ’s findings, the medical panel’s recitation of Nielsen’s
medical history cited the December 2015 appointment with Dr.

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Derr but not the February 2016 appointment. However, the
medical panel acknowledged both Dr. Aardema’s and Dr. Derr’s
opinions that Nielsen’s work contributed to his pain. The
medical panel also spoke directly with Nielsen and examined
the ALJ’s interim findings. The panel concluded that Nielsen’s
low back pain was not caused by his occupational exposure but
was more likely the result of non-occupational factors, including
his history of back pain, obesity, and decrease in physical
activity.

¶7 The ALJ adopted the medical panel’s determination,
concluded that Nielsen’s “March 2011 to August 2015
employment with Wal-Mart did not cause or aggravate his
low back pain,” and dismissed his application for hearing.
Nielsen asked the Board to review the ALJ’s decision, asserting
that the ALJ erred in determining that his injuries were not
medically caused by his work because the ALJ, Dr. Knoebel, and
the medical panel failed to consider the records of the February
2016 visit with Dr. Derr, in which Dr. Derr identified Nielsen’s
“work at Walmart as at least a contributing cause.” He also took
issue with the ALJ’s analysis of his injury under the
Occupational Disease Act rather than the Workers’
Compensation Act.

¶8 The Board observed that Dr. Derr’s February 2016 report
was duplicative of his earlier findings and that the medical panel
clearly considered Dr. Derr’s opinions. It further found that the
“thorough and well-reasoned” opinion provided by the medical
panel, based on “impartial and collegial review of all of Mr.
Nielsen’s relevant medical history,” was more persuasive than
Dr. Derr’s opinion. The Board therefore determined that “the
preponderance of the evidence shows that Mr. Nielsen’s work
activities did not medically cause his low-back problems” and
that the result was the same regardless of whether Nielsen’s
injury was analyzed under the Occupational Disease Act or the
Workers’ Compensation Act. Nielsen now requests that we
review the Board’s decision.

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ISSUES AND STANDARDS OF REVIEW

¶9 On review, Nielsen renews his argument that medical
causation was established by Dr. Derr’s February 2016 report 1
and asserts that the Board erred in determining that medical
causation had not been established. “Whether the [Board]
correctly or incorrectly denied benefits is a traditional mixed
question of law and fact.” Jex v. Utah Labor Comm’n, 2013 UT 40,
¶ 15, 306 P.3d 799 (quotation simplified). The level of deference
to be granted such a decision depends on whether the question
presented is more fact-like or more law-like. Id. The Board’s
determination regarding medical causation is highly fact-
intensive and is therefore entitled to a high degree of deference.
Fogleman v. Labor Comm’n, 2015 UT App 294, ¶ 38, 364 P.3d 756.
We will therefore overturn it only if it is not supported by
substantial evidence. Id. ¶¶ 25, 38 (“A finding is supported by
substantial evidence when a reasonable mind might accept as

1. Nielsen also asserts that the members of the medical panel
were not qualified to assess his back injury. But Nielsen did not
object when the medical panel was appointed or when it
submitted its report. He also did not raise this challenge in his
motion for review before the Board. Rather, he raised it for the
first time in his reply memorandum to the Board, and even at
that point, he did no more than question the medical panel’s
expertise without pointing to anything to suggest that its
members were not qualified. This argument is therefore
unpreserved for our review, and we decline to consider it. See
Brown & Root Indus. Service v. Industrial Comm’n, 947 P.2d 671,
677 (Utah 1997) (“[C]ourts should not reach issues on review
that were not raised before an administrative agency . . . .”); cf.
Stevens v. LaVerkin City, 2008 UT App 129, ¶ 31, 183 P.3d 1059
(“Where a party first raises an issue in his reply memorandum, it
is not properly before the trial court and we will not consider it
for the first time on appeal.” (quotation simplified)).

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Nielsen v. Labor Commission

adequate the evidence supporting the decision.” (quotation
simplified)).

ANALYSIS

¶10 Medical causation may be established where an
“industrial injury results in a permanent impairment that is
aggravated by or aggravates a pre-existing permanent
impairment to any degree.” Cox v. Labor Comm’n, 2017 UT App
175, ¶ 18, 405 P.3d 863 (quotation simplified). 2 In other words, “a
claimant must show that (1) the industrial accident contributed
in any degree to the claimant’s condition, such as by aggravating
a preexisting condition, and (2) the aggravation is permanent,
i.e., the claimant’s medical condition never returned to baseline,
meaning the claimant’s condition immediately before the
accident.” Id. ¶ 20.

¶11 Nielsen maintains that the Board exceeded its discretion
in concluding that his work at Walmart did not contribute to his

2. One of the challenges to the ALJ’s decision that Nielsen raised
to the Board was that the ALJ analyzed the case under the
Occupational Disease Act rather than the Workers’
Compensation Act. The allegedly problematic portion of that
analysis appears to be the ALJ’s suggestion that the standard
articulated in Cox is limited to industrial injuries rather than
occupational diseases. However, in reviewing the ALJ’s order,
the Board employed the medical-causation test outlined in Cox
and determined that Nielsen could not establish medical
causation under that standard. Because we are tasked with
reviewing the Board’s decision rather than the ALJ’s, Wood v.
Labor Comm’n, 2012 UT App 26, ¶ 4, 270 P.3d 568, we likewise
examine medical causation under Cox and find it unnecessary to
address whether the analysis varies under the Occupational
Disease Act.

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back pain. He asserts that Dr. Knoebel’s and the medical panel’s
reports were not reliable because they did not consider Dr.
Derr’s February 2016 report opining that Nielsen’s work at
Walmart contributed to his injuries. 3 But it is clear from the
record that both Dr. Knoebel and the medical panel did consider
the February 2016 report; Dr. Knoebel was aware of the report’s
conclusions, even though he did not have direct access to it, and
the medical panel reported having access to and reviewing all
seventy-two pages of the medical record, which included Dr.
Derr’s February 2016 report. Further, Dr. Derr’s opinion in the
February 2016 report was substantively identical to his opinion
in the December 2015 report, which likewise opined that
Nielsen’s work at Walmart was “contributing to his back
symptoms.” It is clear that both Dr. Knoebel and the medical
panel reviewed and considered Dr. Derr’s opinion—they just
disagreed with it.

¶12 Nielsen also asserts that Dr. Derr was the only one to
acknowledge the contribution of his lumbar-spine injuries to his
back pain, whereas the other professionals ignored the MRI
results and attributed his symptoms to unknown causes. But
both Dr. Knoebel and the medical panel reviewed the MRI and
recognized that Nielsen had lumbar injuries; the difference
between their conclusions and that of Dr. Derr was that they
believed those injuries to have stemmed from non-industrial
causes.

¶13 The Board explicitly considered the opinions of all
physicians in the case but ultimately “assign[ed] more weight to

3. Nielsen also asserts that the ALJ did not consider Dr. Derr’s
opinion. In fact, the ALJ directly cited Dr. Derr’s February 2016
report in both her interim findings and her final decision. But in
any event, we are tasked with reviewing the Board’s decision,
not the ALJ’s, see supra note 2, and the Board explicitly
considered and rejected Dr. Derr’s opinion.

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the medical panel’s conclusions” because it considered those
conclusions to be “the product of impartial and collegial review
of all of Mr. Nielsen’s relevant medical history.” See Bade-Brown
v. Labor Comm’n, 2016 UT App 65, ¶ 13, 372 P.3d 44 (explaining
that the Board “may choose to give certain evidence more
weight than other evidence, so long as there is substantial
evidence when viewed in light of the whole record to support its
findings” (quotation simplified)). It accordingly accepted the
medical panel’s conclusion that Nielsen’s pain was not caused or
aggravated by his work at Walmart to any degree. See Cox, 2017
UT App 175, ¶ 18. The medical panel’s and Dr. Knoebel’s reports
constitute substantial evidence supporting this decision, and we
therefore defer to the Board’s determination that Nielsen could
not establish medical causation. See Fogleman v. Labor Comm’n,
2015 UT App 294, ¶ 38, 364 P.3d 756.

CONCLUSION

¶14 Because substantial evidence supports the Board’s
determination that Nielsen’s back pain was not medically caused
by his work at Walmart to any degree, the Board’s determination
is entitled to deference. We therefore uphold the Board’s denial
of Nielsen’s claim.

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