Nielsen v. Labor Commission

2020 UT App 2
THE UTAH COURT OF APPEALS
JEFFERY R YAN NIELSEN ,
Petitioner,
v.
LABOR C OMMISSION , WALMART S TORE, AND
NEW HAMPSHIRE I NSURANCE C OMPANY ,
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 M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES K ATE A PPLEBY and R YAN 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

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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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20180823-CA 	3 	2020 UT App 2
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 report1
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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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.