Original Proceeding in this Court
V. Olsen and Michael G. Belnap, Attorneys for Petitioner
H. Tolk and Cody G. Kesler, Attorneys for Respondents Walmart
Store and New Hampshire Insurance Company
Michele M. Christiansen Forster authored this Opinion, in
which Judges Kate Appleby and Ryan M. Harris concurred.
CHRISTIANSEN FORSTER, JUDGE
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.
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.
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.
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.
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.
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.
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.
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 ...