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Nielsen v. Labor Commission

Court of Appeals of Utah

January 3, 2020

Jeffery Ryan Nielsen, Petitioner,
Labor Commission, Walmart Store, and New Hampshire Insurance Company, Respondents.

          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.



         ¶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.


         ¶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 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 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. 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 ...

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