Washington County School District v. Labor Commission

2013 UT App 205
_________________________________________________________

THE UTAH COURT OF APPEALS

WASHINGTON COUNTY SCHOOL DISTRICT AND UTAH SCHOOL
BOARD RISK MANAGEMENT ASSOCIATION,
Petitioners,
v.
LABOR COMMISSION AND STEVEN H. BROWN,
Respondents.

Opinion
No. 20110228‐CA
Filed August 22, 2013

Original Proceeding in this Court

Bret A. Gardner and Kristy L. Bertelsen,
Attorneys for Petitioners
Aaron J. Prisbrey and Elizabeth B. Grimshaw,
Attorneys for Respondent Steven H. Brown
Alan L. Hennebold, Attorney for Respondent
Labor Commission

JUDGE CAROLYN B. MCHUGH authored this Opinion, in which
JUDGES JAMES Z. DAVIS and STEPHEN L. ROTH concurred.

McHUGH, Judge:

¶1 The Washington County School District and the Utah School
Board Risk Management Association (collectively, the School
District) seek judicial review of the final order of the Labor
Commission (the Commission) awarding Steven H. Brown
additional workers’ compensation benefits. We decline to disturb
the Commission’s decision.

BACKGROUND

¶2 On January 27, 2003, while employed as a bus driver for the
School District, Mr. Brown fell off the steps of a school bus. He
 Washington Cnty. Sch. Dist. v. Labor Comm’n

injured his lower back and was treated by Dr. Dale Stott for left‐
sided low‐back and leg pain. Dr. Stott initially attempted to
manage Mr. Brown’s pain by administering lumbar epidural
steroid injections on May 12, 2003, June 12, 2003, July 22, 2003, May
12, 2004, and August 3, 2004; a nerve block on October 8, 2003; and
lumbar paravertebral facet nerve radiofrequency destruction on
November 4, 2003, and May 19, 2004.1 Despite these treatments,
Mr. Brown continued to experience back pain. As a result, Dr. Stott
referred him to a spine surgeon, Dr. Mark Kabins.

¶3 On August 20, 2004, Dr. Kabins concluded that an MRI of
Mr. Brown’s spine “demonstrates a large extruded disc herniation
at the L4–5[2] with sequestration.”3 Dr. Kabins performed surgery
to repair the left side of Mr. Brown’s lumbar spine at the L4–5 level
on August 29, 2004. Dr. Kabins’s notes from an October 1, 2004

1. Radiofrequency destruction or radiofrequency ablation “is
a procedure used to reduce pain. An electrical current
produced by a radio wave is used to heat up a small area of
nerve tissue, thereby decreasing pain signals from that specific
area.” See Radiofrequency Ablation for Arthritis Pain, WebMD,
http://www.webmd.com/pain‐management/radiofrequency‐abla
tion (last visited Aug. 16, 2013).

2. “The vertebrae . . . are organized into segments, starting at the
top of the spinal cord, and within each segment they are
numbered. . . . The lumbar area (between the chest area and the
pelvis) contains 5 lumbar vertebrae (L1 through L5) . . . .” See Living
with a Spinal Cord Injury—What Happens, WebMD (Feb. 16,
2011), http://www.webmd.com/brain/tc/living‐with‐a‐spinal‐cor
d‐injury‐what‐happens.

3. “A disc herniation occurs when the soft cushion between the
spinal bone ruptures. . . . A disc sequestration occurs when the
center, gelatinous portion of the disc is not only squeezed out, but
also separated from the main part of the disc.” Jonathan Cluett,
Disc Extrusion, Protrusion, and Sequestration, About.com (Oct. 10,
2005), http://orthopedics.about.com/od/herniateddisc/g/discs.htm.

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 Washington Cnty. Sch. Dist. v. Labor Comm’n

postoperative examination indicate that Mr. Brown “does have
intermittent back discomfort, but is clearly improved and stable.”
Dr. Kabins prescribed pain medication and scheduled a final
follow‐up visit to see Mr. Brown a month later. However, Mr.
Brown returned to Dr. Kabins on October 16, 2004, and reported
that he “was doing well until 4 days ago when he developed onset
of back discomfort.” Dr. Kabins prescribed Mr. Brown additional
pain medication to address his “increased back pain and . . .
discomfort in his left leg.” Three weeks later, Dr. Kabins reported
that Mr. Brown was “doing well with minimal discomfort.”

¶4 Mr. Brown sought workers’ compensation benefits for his
2003 workplace injury. The School District accepted liability for the
injury and paid him permanent partial disability compensation as
well as medical benefits. At that time, the Commission rated him
with a 10% whole person impairment and approved his receipt of
workers’ compensation benefits. In October 2004, Mr. Brown
returned to work driving a school bus for the School District.

¶5 On March 8, 2007, Mr. Brown again saw Dr. Stott and
reported that he was experiencing “low back pain and left leg pain
and numbness,” which “ha[d] existed for 2 years.” Mr. Brown
indicated to Dr. Stott that he did well for about one year after the
2004 surgery, but then the pain returned, and he now suffered from
it daily. Dr. Stott diagnosed Mr. Brown with “Failed Back Surgery
Syndrome” and “Probable recurrent disc herniation.” Dr. Stott also
ordered an MRI, which was performed on March 22, 2007. The MRI
confirmed that Mr. Brown had an L4–5 recurrent disc extrusion4
slightly indenting the thecal sac5 and mildly compromising both

4. “A disc extrusion occurs when the outer part of the spinal disc
ruptures, allowing the inner, gelatinous part of the disc to squeeze
out.” Id.

5. The thecal sac surrounds the spinal cord and is filled with
cerebral spinal fluid. See Thecal sac, Wikipedia, http://en.wikipedia
.org/wiki/Thecal_sac (last visitedAug. 16, 2013).

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 Washington Cnty. Sch. Dist. v. Labor Comm’n

the lateral recesses6 and the right neuroforamen.7 The radiology
report from the MRI also indicated some right side involvement,
stating, “L4–5 demonstrates right posterolateral[8] prominence of
the disc without enhancement compatible with a broad disc
extrusion slightly indenting the thecal sac. This mildly
compromises both lateral recesses and the right neuroforamen.” To
treat the pain caused by this condition, Dr. Stott administered
another lumbar epidural steroid injection on April 9, 2007. Dr.
Stott’s procedure report described the preinjection diagnosis as
“Failed Back Surgery Syndrome” and “Lumbar radiculopathy,”9
and the postinjection diagnosis as “SAME.”

¶6 Five months later, on September 1, 2007, Mr. Brown was
attending a local festival when a person called out his name and

6. “The lateral recess is the space within the spinal canal located
toward the sides.” Anne Asher, Lateral Recess, About.com (June 22,
2011), http://backandneck.about.com/od/anatomyexplained/g/La
teral‐Recess.htm.

7. The neuroforamen is an opening between vertebrae
that allows for the passage of the nerves from the spinal
cord to other parts of the body. See Intervertebral foramina,
Wikipedia, http://en.wikipedia.org/wiki/Intervertebral_foramina
(last visited Aug. 16, 2013).

8. Posterolateral is defined as “[b]ehind and to one side,
specifically to the outer side.” See Posterolateral, Drugs.com,
http://www.drugs.com/dict/posterolateral.html (last visited Aug.
16, 2013).

9. Lumbar radiculopathy is “one clinical name for pain
that radiates from a nerve root in the lumbar spine down
into your legs . . . .” Lumbar Radiculopathy—Symptoms,
Causes, and Treatments, LumbarSpinalStenosis.com,
http://www.lumbarspinalstenosis.com/lumbar‐radiculopathy‐sy
mptoms‐causes‐treatments‐low‐back‐leg‐pain.html (last visited
Aug. 16, 2013).

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then jumped on his back, forcibly knocking Mr. Brown to the
ground. Although Mr. Brown did not see the person, based on his
long experience as a bus driver he assumed it was a child he drove
on the School District’s bus who was excited to see him. Mr. Brown
felt immediate back pain, and following the festival incident, he
suffered from constant stabbing, burning pain in his lumbar area
that radiated from his back all the way down his legs.

¶7 Dr. Stott examined Mr. Brown on September 19, 2007, and
reported that

Steven Brown is a 38 year‐old male receiving
treatment at Zion Pain Management for low back
pain and right lower extremity pain. Today he
presents with the new right sided symptoms. In the
past, his symptoms were left sided, but he[] reports
these have resolved. Steven has received the
following interventional pain management
procedures since his last office visit: lumbar
transforaminal epidural steroid injection x 2. He
reports 100 percent improvement from this
procedure. In last 3 weeks has started to radiate to
right buttock and right lower extremity into right
2,3,4 toes of right foot with numbness and tingling.
He states this happened after someone jumped on
him and he fell. He states the pain is constant.

Dr. Stott again diagnosed Mr. Brown with “Failed Back Surgery
Syndrome” and “Lumbar radiculopathy.” Dr. Stott also ordered a
new MRI.

¶8 Dr. Stott’s notes of a subsequent visit on October 2, 2007,
state that the second MRI showed “[n]ew disc sequestration
extending cranially behind the L4 Veterbral body with moderate
right lateral recess compromise and indentation of the thecal sack.”
The radiology report further indicates that “this disc extrusion
demonstrates a component which extends left posterolaterally as
well at L4–5.” Dr. Stott determined that Mr. Brown’s injuries had

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 Washington Cnty. Sch. Dist. v. Labor Comm’n

progressed since his previous examination and assessed Mr. Brown
with “Failed Back Surgery Syndrome,” “Lumbar radiculopathy,”
and “Lumbar Disc Extrusion L4–5.”

¶9 On October 6, 2007, Mr. Brown consulted with Dr. Kabins,
whose notes reflect that since Mr. Brown was last seen on
November 5, 2004, he has “undergone maintenance care by Zion
Pain Management” and “has had low back pain, left lower
extremity radiculopathy.” Dr. Kabins further indicated that Mr.
Brown “underwent microdecompressive surgery.[10] He had an
excellent outcome. He has subsequently undergone injection
therapy . . . on a supportive basis.” According to Dr. Kabins, Mr.
Brown reported that around September 1, 2007, “he ha[d]
developed worsening low back pain and worsening right lower
extremity radicular symptoms. He relays an event where he was
jumped by a young family boy. He fell to the ground, landed on his
buttock and developed . . . right lower extremity radiculopathy.”
Dr. Kabins concluded, “Certainly it appears that the causality for
the herniated disc is multi factorial, that being a preexisting process
in the industrial injury, as well as an acute process from the recent
attack/incident.” Based on his examination, Dr. Kabins advised
Mr. Brown that surgery was reasonable and appropriate.

¶10 On October 25, 2007, Mr. Brown consulted with Dr. Gary
Snook, who diagnosed him with “Intervertebral disc disorder with
myelopathy, lumbar region.”11 Dr. Snook also noted that the MRI

10. Microdecompressive surgery “is a minimally invasive surgical
procedure in which a portion of a herniated [disc] is removed by
way of a surgical instrument or laser.” Spinal decompression,
Wikipedia, http://en.wikipedia.org/wiki/Spinal_decompression
(last visited Aug. 16, 2013).

11. Myelopathy is defined as “any functional disturbance
and/or pathological change in the spinal cord.” Myelopathy,
TheFreeDictionary.com, http://medical‐dictionary.thefreedictionary
.com/myelopathy (last visited Aug. 16, 2013).

20110228‐CA 6 2013 UT App 205
 Washington Cnty. Sch. Dist. v. Labor Comm’n

of the lumbar spine showed “HNP at L4–5 right sided.”12 At a
follow‐up visit on October 31, 2007, Dr. Snook reported, “The event
which precipitated this [lower back] pain was a young child
jumped on his back[]. He states that the current episode of pain
started Sept. 1 2007 . . . .” Dr. Snook performed spinal surgery on
Mr. Brown on November 1 and 5, 2007. Dr. Snook also completed
a Treating Physician Opinion report on November 20, 2007, which
answers “yes” to the question, “Is there a medical causal
relationship between the industrial exposure and the problems for
which you have been treating the employee . . . ?” Dr. Snook
continued to treat Mr. Brown through December 2007.

¶11 After the 2007 incident, Mr. Brown petitioned the
Commission for payment of additional medical expenses, other
recommended medical care, and additional temporary total
disability compensation. In response, the School District filed an
answer denying workers’ compensation liability for Mr. Brown’s
new injuries on the ground that there was no medical causation
between the 2003 workplace injuries and the 2007 injuries.

¶12 At the request of the School District, Dr. Richard Knoebel
examined Mr. Brown on March 18, 2008. Dr. Knoebel prepared a
report in which he notes,

Given the MRI scan findings of right‐sided disc
extrusion with right neural foraminal narrowing
remaining, as well as significant degenerative disc
disease and disc desiccation at that level noted in
MRI scan prior to 9/1/07, it must be said with a
reasonable degree of medical probability that “the
initial work‐related accident (is merely) a
contributing cause of the subsequent injury.”

12. HNP is an abbreviation for herniation of the nucleus
pulposus, commonly known as a herniated disc. See Edgar G.
Dawson, Herniated Discs: Definition, Progression, and Diagnosis,
SpineUniverse, http://www.spineuniverse.com/conditions/herni
ated‐disc/herniated‐discs‐definition‐progression‐diagnosis (last
visited Aug. 16, 2013).

20110228‐CA 7 2013 UT App 205
 Washington Cnty. Sch. Dist. v. Labor Comm’n

Although Dr. Knoebel concluded that Mr. Brown “had a
permanent aggravation of his pre‐existing L4–5 industrial
condition secondary to the non‐industrial incident of [2007],” he
explained that his conclusion was based on the assumption that
this court’s decision in McKesson Corp. v. Labor Commission, 2002 UT
App 10, 41 P.3d 468, “dictates that the previous work related
accident has to be ‘merely’ some contributing cause of the
subsequent injury.” Dr. Knoebel further opined that the prior
workplace injury “certainly was not the most important or
significant cause” of the subsequent injury but was “a very minor
contributing cause.”

¶13 A month after he prepared his initial report, Dr. Knoebel
had a conversation with the School District’s legal counsel. Shortly
thereafter, Dr. Knoebel wrote a supplemental report opining that
“the subsequent non‐industrial low back aggravation . . . was not
the ‘natural result’ of the prior industrial event.” The supplemental
report further notes, “Not all people with a prior surgical
discectomy at L4–5 go on to have a re‐rupture as a natural result of
the original injury and surgery. In this case the significant cause for
the recurrent disc herniation at L4–5 was the non‐industrial
permanent aggravation of [2007].”

¶14 At a hearing before an Administrative Law Judge (ALJ) on
May 6, 2008, Mr. Brown gave sworn testimony that he “never
recovered from the January 27, 2003 accident and was always stiff
and sore and would have [flare] ups that required pain
medication.”13 In addition, he introduced his medical records as
evidence. Those records included the opinions of Dr. Snook, Dr.
Kabins, and Dr. Knoebel.14 On August 27, 2008, the ALJ issued her
written decision, concluding, “All medical evidence supports a
finding that the prior industrial disc injury was a contributing

13. Those prescriptions were paid for by workers’ compensation
from the date of the initial injury to 2007.

14. Dr. Stott, who treated Mr. Brown after both incidents, did not
provide an opinion as to the impact of the 2003 workplace accident
on the injuries Mr. Brown suffered in 2007.

20110228‐CA 8 2013 UT App 205
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cause to the outcome and injury resulting from the festival
incident . . . .” In particular, the ALJ determined that Mr. Brown’s
“disc at the L4–5 level with its ‘residual’ disc extrusion and ‘already
narrowing’ right neural fragment was a contributing cause to the
injury.” The ALJ additionally ruled that because there was “no
evidence that Mr. Brown was engaged in any rash or foolhardy
conduct” or other intentional or negligent misconduct, “there was
no break in the chain of causation between his original work
accident and his injury after the September 2007 incident.”
Accordingly, the ALJ ordered the School District to pay Mr. Brown
for reasonable and necessary medical expenses and temporary total
disability compensation.

¶15 In response, the School District filed a motion for review,
claiming that Dr. Knoebel’s supplemental report established that
the injuries sustained after the 2003 industrial accident were not the
medical cause of Mr. Brown’s injuries. The School District further
argued that Dr. Knoebel’s supplemental report created a conflicting
medical opinion regarding medical causation and that the ALJ
should have appointed a medical panel to resolve the issue. The
Commission agreed with the ALJ that the 2003 accident was a
contributing cause of Mr. Brown’s 2007 injuries. In doing so, the
Commission also found that there were no conflicting medical
opinions. Accordingly, the Commission affirmed the ALJ’s decision
and awarded Mr. Brown additional workers’ compensation
benefits. The School District now petitions this court for review of
the Commission’s decision.

ISSUES AND STANDARDS OF REVIEW

¶16 The School District first argues that the Commission applied
the wrong medical causation analysis in determining Mr. Brown’s
eligibility for additional workers’ compensation benefits. Whether
“the Commission relied upon an incorrect legal standard in
determining [a petitioner’s] eligibility for additional workers’
compensation benefits . . . presents a question of law, which we
review for correctness.” McKesson Corp. v. Labor Comm’n, 2002 UT
App 10, ¶ 10, 41 P.3d 468. However, an issue is generally not

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properly presented for judicial review unless it has been preserved
in the administrative proceedings. See Brown & Root Indus. Serv. v.
Industrial Comm’n, 947 P.2d 671, 677 (Utah 1997).

¶17 The School District also challenges the Commission’s factual
findings. “To aid the appellate court in conducting a whole record
review, the party challenging the factual findings must marshal all
of the evidence and demonstrate that, despite the facts supporting
the decision, the ‘findings are not supported by substantial
evidence.’” Martinez v. Media‐Paymaster Plus/Church of Jesus Christ
of Latter‐day Saints, 2007 UT 42, ¶ 36, 164 P.3d 384 (quoting Grace
Drilling Co. v. Board of Review of Indus. Comm’n, 776 P.2d 63, 68
(Utah Ct. App. 1989)).

¶18 Next, the School District contends that the ALJ erred in
refusing to refer the case to a medical panel to determine whether
the 2003 accident was the medical cause of Mr. Brown’s 2007
injuries and whether the 2007 injuries were the natural result of the
2003 workplace accident. Although Utah’s Workers’ Compensation
Act (the Act), see Utah Code Ann. §§ 34A‐2‐101 to ‐1005 (LexisNexis
2011 & Supp. 2012), generally affords the ALJ discretion whether
to convene a medical panel in workers’ compensation cases, see id.
§ 34A‐2‐601(1)(b) (2011), the regulations implementing the Act
require the ALJ to use a medical panel when “one or more
significant medical issues may be involved,” see Utah Admin. Code
R602‐2‐2.A. The Administrative Code further provides that
conflicting medical reports generally constitute a significant
medical issue. Id. “Whether there are conflicting medical reports is
a question of fact,” the Commission’s findings on which “[w]e
must uphold . . . if such findings are supported by substantial
evidence based upon the record as a whole.” Brown & Root, 947
P.2d at 677.

¶19 Last, the School District argues that the Commission
misapplied section 34A‐2‐401 of the Act by concluding that
Mr. Brown’s 2003 industrial accident was the cause of his 2007
injuries. In particular, the School District challenges the
Commission’s application of the governing legal standard to the
facts of this case. Thus, the School District’s argument presents “a

20110228‐CA 10 2013 UT App 205
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traditional mixed question of law and fact.” See Murray v. Labor
Comm’n, 2013 UT 38, ¶ 24. “The standard of review we apply when
reviewing a mixed question can be either deferential or
nondeferential . . . .” Id. ¶ 36. We will defer to an agency
determination of a mixed question when “‘the mixed finding is not
“law‐like” because it does not lend itself to consistent resolution by
a uniform body of appellate precedent’ or ‘is “fact‐like” because the
trial court is in a superior position to decide it.’” Id. ¶ 37 (emphasis
omitted) (quoting In re Adoption of Baby B., 2012 UT 35, ¶ 42). In
Murray, the Utah Supreme Court held that the Commission’s
decision that a claimant had failed to establish legal causation
under the Act was law‐like and, therefore, subject to nondeferential
review. Id. ¶ 40. Accordingly, we uphold the Commission’s
findings of fact if they are supported by substantial evidence.
Martinez, 2007 UT 42, ¶ 17. But we review the Commission’s
application of the law to the facts for correctness. See Murray, 2013
UT 38, ¶¶ 33, 40.

ANALYSIS

I. The School District Failed To Preserve Its Argument That the
Commission Should Have Applied a Different Medical
Causation Analysis.

¶20 The School District argues that the Commission applied the
wrong legal standard in determining medical causation. To put this
issue in context, we begin our analysis with an overview of the law
governing causation under the Act.

¶21 Section 34A‐2‐401(1) of the Act provides that an employee
“who is injured . . . by accident arising out of and in the course of
the employee’s employment, wherever such injury occurred, if the
accident was not purposely self‐inflicted, shall be paid . . .
compensation for loss sustained on account of the injury,”
including medical expenses. Utah Code Ann. § 34A‐2‐401(1)
(LexisNexis 2011). Here, there is no dispute that Mr. Brown had a
workplace accident in 2003. The parties are also in agreement that
Mr. Brown’s 2007 injuries were not self‐inflicted. Thus, the issue in

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 Washington Cnty. Sch. Dist. v. Labor Comm’n

dispute is whether Mr. Brown’s 2007 injuries arose “out of and in
the course of [Mr. Brown’s] employment.” See id.

¶22 In Mountain States Casing Services v. McKean, 706 P.2d 601
(Utah 1985) (per curiam), the Utah Supreme Court considered
whether an injury arose out of and in the course of employment
even though it occurred after the initial workplace accident. Id. at
601–03. There, an employee lost his right arm in an industrial
accident and it was surgically reattached. Id. at 601–02. The
employee’s doctor advised him that the sensation in his right hand
would return gradually and instructed him to use the hand as
much as possible to increase mobility. Id. at 602. After spending a
day repairing a steam radiator in his home, installing an exhaust
header in his car, and cooking a meal on a hot plate, the employee
awoke the following morning with second degree burns on his
right hand. Id. The employer and its insurer denied liability for the
medical expenses related to the burn on the grounds that it was
“unrelated to the original [workplace] accident and [the employee]
was negligent in not protecting his hand from burns.” Id. On
review, the Utah Supreme Court affirmed the Industrial
Commission’s order requiring the employer to pay for the
employee’s medical expenses, stating, “Once a compensable injury
occurs, there is no limitation as to the time during which all
medical[ expenses] resulting from that injury will continue to be
paid.” Id. at 601–02. The supreme court further explained,

A subsequent injury is compensable if it is found to
be a natural result of a compensable primary injury.
[The employee] is not required to show that his
original tragedy was the sole cause of a subsequent
injury, but only that the initial work‐related accident
was a contributing cause of his subsequent . . . injury.

Id. at 602.

¶23 One year after McKean, the Utah Supreme Court again
interpreted the Act in Allen v. Industrial Commission, 729 P.2d 15
(Utah 1986). There, an employee with a history of back problems
suffered a herniated disc while lifting a crate at work. Id. at 17. The

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ALJ found that the injury did not arise out of or in the course of
employment and denied compensation. Id. On review, the Utah
Supreme Court explained that to recover under the Act, the
employee must prove “a causal connection between the injury and
the worker’s employment duties.” Id. at 22. The supreme court
further explained that the employee must prove that the workplace
accident is both the legal and the medical cause of the injuries. Id.
at 25–27. For medical causation, the supreme court adopted the test
advanced by a legal commentator, Professor Arthur Larson, which
distinguishes between situations in which the employee had a
medical condition before the workplace injury and those where the
employee did not, noting,

“If there is some personal causal contribution in the
form of a [preexisting condition], the employment
contribution must take the form of an exertion
greater than that of nonemployment life . . . .

If there is no personal causal contribution, that is, if
there is no prior weakness or disease, any exertion
connected with the employment and causally
connected with the [injury] as a matter of medical
fact is adequate to satisfy the legal test of causation.”

Id. at 26 (alterations in original) (quoting Larson, Workmen’s
Compensation § 38.83(b), at 7‐278 (1986)).

¶24 More recently, in McKesson Corp. v. Labor Commission, 2002
UT App 10, 41 P.3d 468, this court considered whether the Allen
causation analysis had supplanted the McKean natural result
standard when determining whether a claimant qualifies for
additional benefits due to a subsequent aggravation of a
compensable workplace injury. Id. ¶¶ 12–23. The employer in
McKesson asserted that the compensable primary injury created a
preexisting condition that placed the burden on the employee
under Allen to show an extraordinary workplace exertion before he
was eligible to recover for subsequent aggravation of those injuries.
Id. ¶ 19. Relying in part on McKean’s treatment of subsequent
compensable injuries, id. ¶¶ 18, 21, we held that “it would be

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inappropriate to examine subsequent aggravations of compensable
work‐related injuries by applying the same exacting standard that
we apply when determining the compensability of primary
workplace injuries involving preexisting conditions,” id. ¶ 22.
Instead, we concluded that once the initial injury is determined to
be a compensable injury, “the employer is responsible for ‘all
medical[ costs] resulting from [the compensable] injury,’ including
costs resulting from subsequent aggravations to the compensable
workplace injury.” Id. ¶ 21 (alterations in original) (quoting
McKean, 706 P.2d at 602). The McKesson court then qualified that
statement, noting, “Of course, responsibility for costs resulting
from subsequent aggravations to compensable workplace injuries
is not automatic. The claimant must first demonstrate that the
subsequent aggravation is the ‘natural result’ of the primary
workplace injury or accident.” Id. ¶ 21 n.3 (quoting McKean, 706
P.2d at 602); see also Champion Home Builders v. Industrial Comm’n,
703 P.2d 306, 307 (Utah 1985); Perchelli v. Industrial Comm’n, 475
P.2d 835, 837 (Utah 1970).

¶25 In the present case, the ALJ and the Commission applied the
natural result test announced in McKean to determine whether
Mr. Brown’s 2007 injuries are compensable. The School District
argues on appeal that because the subsequent injury involved an
outside force rather than Mr. Brown’s own conduct, the
Commission should have applied the causation standard mandated
by Allen. Mr. Brown contends that the School District failed to
preserve this issue in the administrative proceedings. In response,
the School District points to its Answer to Application for Hearing
and pretrial disclosures filed before the Commission as having
preserved this issue. In particular, the School District relies on its
assertion that Mr. Brown “cannot establish, on a more probable
than not basis, that there is medically demonstrative causal
connection between [Mr. Brown’s] current complaints of back pain
and any industrial event sustained . . . while employed by [the
School District].”

¶26 We agree with Mr. Brown that this statement is insufficient
to bring to the attention of the ALJ or the Commission that the
School District sought the application of the Allen causation

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standard rather than the McKean natural result standard. There is
nothing in the record to indicate that the School District ever made
a specific objection to the ALJ’s application of the McKean causation
standard. See State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867 (“Where
there is no clear or specific objection and the specific ground for
objection is not clear from the context[,] the theory cannot be raised
on appeal.” (alteration in original) (citation and internal quotation
marks omitted)). Furthermore, while the language upon which the
School District relies in its written submissions challenges
Mr. Brown’s ability to prove causation by a preponderance of the
evidence, it says nothing about the causation test itself. Under these
circumstances, the argument that the Allen test should apply is not
preserved and we do not address it on the merits. See Brown & Root
Indus. Serv. v. Industrial Comm’n, 947 P.2d 671, 677 (Utah 1997)
(holding that issues not raised in administrative proceedings are
not subject to judicial review, absent exceptional circumstances).15

II. Because the School District Failed to Adequately Marshal the
Evidence, We Do Not Disturb the Factual Findings.

¶27 The School District also attempts to challenge the ALJ’s and
Commission’s findings of fact. However, the School District has
failed to marshal the evidence. To challenge a finding of fact, “a
party may not simply cite to the evidence which supports his or her
position and hope to prevail. Rather, a party should construct the
evidence supporting the adversary’s position, and then ferret out
a fatal flaw in the evidence.” Utah Cnty. v. Butler, 2008 UT 12, ¶ 11,
179 P.3d 775 (citations and internal quotation marks omitted). By
setting forth only the facts that are helpful to its position and
ignoring those that support the factual findings, the School District
has turned the marshaling requirement on its head. For example,
the School District’s statement of the facts emphasizes that Mr.
Brown had presented “with new right sided symptoms” after the 2007
incident, that the MRI scan conducted after the 2007 incident
“revealed that [Mr. Brown] had sustained a new L4–5 right

15. The School District does not assert that there are any
exceptional circumstances in the present case that would warrant
appellate review of an unpreserved issue.

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posterolateral disc injury,” and that “Dr. Stott confirmed that [Mr.
Brown] had sustained a new disk herniation at L4–5.” (Emphases
added.) However, the MRI scan performed on March 22, 2007,
prior to the incident with the child, showed that Mr. Brown’s
“recurrent disc extrusion slightly indenting the thecal sac and
mildly compromising both lateral recess and the right neuroforamen.”
(Emphases added.) In direct contravention of the obligation to set
forth the evidence in favor of the Commission’s factual findings,
the School District never mentions the existence of this MRI, which
shows the condition of Mr. Brown’s spine only five months before
the festival incident. Because the School District has not adequately
marshaled the evidence, we decline to disturb the factual findings
of the Commission. See id.

III. The ALJ Was Not Required To Submit the Question of
Medical Causation to a Medical Panel.

¶28 Next, the School District claims that the ALJ erred by not
submitting the issue of medical causation to a medical panel. The
Utah Administrative Code requires the ALJ to refer an issue to a
medical panel when there are conflicting medical opinions relating
to causation of the injury. Utah Admin. Code R602‐2‐2.A.
According to the School District, Dr. Knoebel disagreed with
Dr. Kabins’s and Dr. Snook’s conclusions that the 2003 workplace
accident was a contributing cause of Mr. Brown’s 2007 injuries. To
resolve this issue, we must consider whether there is substantial
evidence to support the ALJ’s finding that there was no dispute
among the physicians based on the record as a whole. See Brown &
Root, 947 P.2d at 677 (“Whether there are conflicting medical
reports is a question of fact. We must uphold the Commission’s
factual findings if such findings are supported by substantial
evidence based upon the record as a whole.”).

¶29 Substantial evidence in the record supports the
Commission’s finding that there was no conflict among the medical
experts relating to the cause of Mr. Brown’s 2007 injuries.
Dr. Snook opined that there was a medical causal relationship
between Mr. Brown’s 2003 work‐related injuries and his 2007
injuries. Likewise, Dr. Kabins opined that there were multiple

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factors that caused the herniated disc, including both the 2003
accident and the 2007 incident. Consistent with these opinions, Dr.
Knoebel’s original report states that residual damage to the L4–5
area of the spine, including the right‐sided disc extrusion apparent
in the MRI taken before the 2007 incident, “is considered, with a
reasonable degree of medical probability, a contributing cause” of
Mr. Brown’s new injuries. Dr. Knoebel further states that Mr.
Brown “had a permanent aggravation of his pre‐existing L4–5
industrial condition secondary to the non‐industrial incident of [2007].”
(Emphases added.)

¶30 In the supplemental report Dr. Knoebel filed after consulting
with the School District’s attorney, he also reported that Mr.
Brown’s “subsequent . . . low back aggravation . . . was not the
‘natural result’ of [his work‐related injury].” The Commission
noted, however, that Dr. Knoebel “qualified the meaning of
‘natural result’ by explaining that not all people who undergo a
discectomy on one side experience another rupture as a result of
the injury or surgery.” Neither the ALJ nor the Commission was
required to consider Dr. Knoebel’s attempts to opine on legal
causation. Instead, they could properly limit their consideration of
his report to the medical findings, including that the 2003 accident
was a “contributing cause” of Mr. Brown’s 2007 injuries. See
Intermountain Health Care, Inc. v. Board of Review of the Indus.
Comm’n, 839 P.2d 841, 845 (Utah Ct. App. 1992) (explaining that an
ALJ, not a medical panel, is to determine legal causation). Because
there is substantial evidence in the record to support the
Commission’s finding that Dr. Knoebel did not disagree with the
other physicians with respect to medical causation, the ALJ was not
required to refer that question to a medical panel.

IV. The Commission Correctly Determined that Mr. Brown’s
2007 Injuries Were a Natural Result of the 2003 Workplace
Accident.

¶31 The School District further contends that even if the natural
result standard of causation is applicable and a medical panel was
not required, “there is insufficient medical evidence to establish
that the right sided L4–5 disk herniation [Mr. Brown] sustained

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from the non‐industrial September 1, 2007 accident is the ‘direct
and natural result’ of the January 27, 2003 industrial accident.” The
School District offers two main arguments in support of that
contention: (A) that the leap of a third party onto Mr. Brown’s back
was an “independent intervening cause” of his 2007 injuries and
(B) that Mr. Brown was required to prove that the 2003 workplace
accident was more than 50% responsible for the 2007 injuries. We
address each argument in turn.

A. The Third Party’s Independent Act Did Not Negate the
Causal Connection Between the 2003 Workplace Accident
and the 2007 Injuries.

¶32 Relying on tort causation concepts, the School District
asserts that the leap onto Mr. Brown’s back was an independent,
intervening cause that broke the chain of causation between the
2003 workplace accident and Mr. Brown’s 2007 injuries. However,
workers’ compensation is a statutory remedy and not a tort action.
Our objective in construing the Act is to give effect to the Utah
Legislature’s intent. Savage v. Utah Youth Vill., 2004 UT 102, ¶ 18,
104 P.3d 1242. “To discern legislative intent, we look first to the
statute’s plain language,” and we read that language “as a whole[]
and interpret its provisions in harmony with other statutes in the
same chapter and related chapters.” LPI Servs. v. McGee, 2009 UT
41, ¶ 11, 215 P.3d 135 (alteration in original) (citations and internal
quotation marks omitted). Furthermore, we interpret the Act
consistently with its purpose of “simplif[ying] the process of
awarding compensation for industrial accidents, thereby helping
injured workers receive benefits and employers avoid tort
lawsuits.” Reinsurance Fund v. Labor Comm’n, 2012 UT 76, ¶ 14, 289
P.3d 572. And we construe the Act “liberally in favor of finding
employee coverage.” Id. (citation and internal quotation marks
omitted).

¶33 The Act provides that an employee “who is injured . . . by
accident arising out of and in the course of the employee’s
employment . . . shall be paid” certain benefits and expenses. Utah
Code Ann. § 34A‐2‐401(1) (LexisNexis 2011). In addition, the
definition of terms section of the Act states, “‘Personal injury by

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accident arising out of and in the course of employment’ includes
an injury caused by the willful act of a third person directed against
an employee because of the employee’s employment.” Id. § 34A‐2‐
102(j)(i). The Act further provides,

When any injury or death for which compensation is
payable under this chapter or Chapter 3, Utah
Occupational Disease Act is caused by the wrongful act
or neglect of a person other than an employer, officer,
agent, or employee of the employer: (a) the injured
employee . . . may claim compensation; and (b) the
injured employee . . . may have an action for
damages against the third person.

Id. § 34A‐2‐106(1) (emphases added). Thus, the Act expressly
contemplates that employees may recover compensation for
injuries inflicted by the negligence of third parties and injuries
caused by the willful acts of third parties under some
circumstances.

¶34 Here, Mr. Brown testified that he assumed the person who
jumped on his back was one of the School District’s students who
recognized Mr. Brown as his bus driver, raising the possibility that
the 2007 injuries are recoverable directly as a “‘[p]ersonal injury by
accident arising out of and in the course of employment.’” Id.
§ 34A‐2‐102(j)(i). However, because the Commission’s factual
recitation indicates that an “unknown person” jumped on Mr.
Brown’s back, it did not find that the third party was, in fact, one
of Mr. Brown’s students who jumped on him “because of [his]
employment.” See id. Nevertheless, the express language of the Act
confirms that the right to workers’ compensation is not coextensive
with tort principles.

¶35 Indeed, we have previously declined to utilize tort causation
concepts in applying the statutory scheme provided by the
workers’ compensation system, stating,

[A] “proximate cause” analysis, as that term is
commonly used, is not appropriate in workers’

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compensation cases. Proximate cause is used
primarily in tort law and involves analysis of
foreseeability, negligence and intervening causes.
These factors are not present in the statutory
workers’ compensation system, which excludes
consideration of fault.

Large v. Industrial Comm’n, 758 P.2d 954, 956 (Utah Ct. App. 1988)
(citing A. Larson, 1 Workmen’s Compensation Law § 6.60 (1985)).
Therefore, although the unexpected leap by a third party onto Mr.
Brown’s back might affect whether causation has been met, the
relevant causation standard is whether the 2007 injuries were a
natural result of the 2003 workplace accident. See Mountain States
Casing Servs. v. McKean, 706 P.2d 601, 602 (Utah 1985) (per curiam).

¶36 According to the School District, Dr. Knoebel’s opinion
indicates that the 2007 injuries were not the natural result of the
2003 workplace accident because they would have resulted even in
the absence of the prior industrial accident. Contrary to the School
District’s characterization, Dr. Knoebel did not opine that the
“subsequent non‐industrial medical condition would have more
probably than not occurred even without the primary industrial
event.” Dr. Knoebel said only that the 2007 incident could have
occurred even if Mr. Brown had not suffered the prior industrial
injuries to his lumbar spine.16 We consider Dr. Knoebel’s choice of
verb significant. By indicating that the 2007 injuries could have
been caused even if Mr. Brown had not suffered the 2003 industrial

16. Dr. Knoebel’s report states,
By the description of the [2007] incident, however,
this, in and of itself, could have caused the same
right‐sided L4–5 disc extrusion with onset of right leg
radiculopathy, to a reasonable degree of medical
probability, absent the previous L4–5 disc injury.
Nonetheless, [Mr. Brown] does have the history of a
pre‐existing surgery with associated disc
degeneration at that level on an industrial basis.
(Emphasis added.)

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accident, Dr. Knoebel simply indicated that it was possible.
Furthermore, we agree with the Commission that “there is no
evidence that Mr. Brown would have suffered his current low‐back
injury regardless of his work‐related injury in 2003.” Indeed, even
Dr. Knoebel acknowledges that the 2007 injuries are at the same
level of the spine as was impacted in the 2003 industrial accident
and that the MRI of Mr. Brown’s lumbar spine taken before the
2007 festival incident revealed right‐sided abnormalities.
Consequently, nothing about Dr. Knoebel’s opinions negates the
causal connection between the 2007 injuries and the 2003 industrial
accident. To the contrary, Dr. Knoebel acknowledged that the 2003
accident was a contributing cause, albeit a minor one.

B. The Preponderance of the Evidence Standard Does Not
Require the Workplace Accident To Be More than 50% of
the Cause of the Subsequent Injury.

¶37 The School District next contends that medical causation
between injuries sustained in an initial work‐related accident and
subsequent injuries must be established “by a preponderance of the
evidence.” We agree. See Allen v. Industrial Comm’n, 729 P.2d 15, 23
(Utah 1986) (“[T]he standard to prove causal connection is [by a]
preponderance of the evidence.”); Large, 758 P.2d at 956 (same). The
School District further argues that the requirement that “the causal
connection between the two accidents be supported by at least a
preponderance of evidence” means that the workplace accident
must constitute “more than 50%” of the cause of the subsequent
injury. However, the School District confuses the facts required to
prove causation with the standard by which those facts must be
established.

¶38 The Utah Legislature knew how to expressly limit recovery
to injuries caused more than 50% by the workplace accident if that
had been its intent. See LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215
P.3d 135 (stating that legislative intent is derived from the plain
language of the statute read in harmony “with other statutes in the
same chapter and related chapters” (citation and internal quotation
marks omitted)). Similar to the Act, the Utah Occupational Disease
Act provides for compensation when a disease “arises out of and

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in the course of employment and is medically caused or aggravated
by that employment.” See Utah Code Ann. § 34A‐3‐103 (LexisNexis
2011). With respect to “[p]hysical, mental, or emotional diseases
related to mental stress arising out of and in the course of
employment,” the Utah Occupational Disease Act expressly limits
legal causation to instances in which “extraordinary mental stress
aris[es] predominantly and directly from employment.” Id. § 34A‐
3‐106(1)–(2)(a). By using the word “predominantly,” the legislature
evidenced an intent that compensation be available for these stress‐
induced workplace diseases only when “the sum of all work
related stress is greater than the sum of all non‐work related
stress.” Eastern Utah Broad. v. Labor Comm’n, 2007 UT App 99, ¶ 9,
158 P.3d 1115.

¶39 Unlike the Utah Occupational Disease Act, nothing in the
Workers’ Compensation Act expressly limits compensation to
injuries predominantly caused by the workplace accident. The
absence of such a limitation provides some evidence that the
legislature did not intend to restrict recovery to instances where the
workplace accident constitutes over 50% of the cause of the
subsequent injuries. Cf. Envirocare of Utah, Inc. v. Tax Comm’n, 2009
UT 1, ¶ 6, 201 P.3d 982 (relying on the fact that “[t]he legislature
clearly knew how to identify items that could be excluded from the
tax base” as evidence of intent not to exclude the item in question);
State Farm Mut. Auto. Ins. Co. v. Clyde, 920 P.2d 1183, 1187 (Utah
1996) (concluding that where the legislature used the term “in loco
parentis” in unrelated statutes but omitted such language in the
relevant statute, that omission indicated an “intentional rejection
of the concept of de facto parent or guardian in this context”).

¶40 Furthermore, in Utah, unlike the other jurisdictions
referenced by the School District, our supreme court has instructed
that the “natural result” standard does not require an employee “to
show that his original tragedy was the sole cause of a subsequent
injury, but only that the initial work‐related accident was a
contributing cause of his subsequent . . . injury.” Mountain States
Casing Servs. v. McKean, 706 P.2d 601, 602 (Utah 1985) (per curiam);
accord McKesson Corp. v. Labor Comm’n, 2002 UT App 10, ¶ 18, 41
P.3d 468. This precedent is inconsistent with the School District’s

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argument that Utah’s natural result test requires that the workplace
accident constitute over 50% of the cause of the subsequent injuries.

¶41 Nor do we agree with the School District that a contributing
cause test is too broad because “the employer will become the
lifetime insurer of all subsequent non‐industrial injuries.” We
considered a similar argument in Intermountain Health Care, Inc. v.
Board of Review of the Industrial Commission, 839 P.2d 841 (Utah Ct.
App. 1992). There, an employee injured her back in an industrial
accident that resulted in her missing several months of work and
eventually being awarded temporary total disability benefits. Id. at
842. Subsequently, the employee experienced a sudden, sharp pain
in her back when she attempted to lift her four‐month‐old
grandchild. Id. at 842–43. The employee underwent disc fusion
surgery and applied for additional disability benefits. Id. at 843.
The ALJ asked a medical panel to determine whether there was a
“medically demonstrable causal connection” between the baby‐
lifting incident and the prior industrial accident. Id. The panel
reported that the back surgery was 70% caused by the workplace
injury and 30% caused by lifting the baby. Id. The ALJ then
awarded the employee benefits, and the Commission affirmed that
decision. Id.

¶42 On appeal, the employer claimed that the question to the
panel of whether there was a “medically demonstrable causal
connection” between the two events “adopted a substantially more
liberal standard for causation than that adopted by the Utah
Supreme Court.” Id. at 844. According to the employer, the ALJ
should have asked the panel whether the disc fusion surgery was
the direct and natural result of the prior industrial accident. Id. As
in this case, the employer claimed that the ALJ’s question “would
impose responsibility on an employer upon a finding of even the
slightest relationship between the industrial accident and the injury
in question.” Id. In upholding the Commission’s decision, this court
explained that “the medical panel is to give the Commission the
benefit of its diagnosis relating to those matters that are
particularly within the scope of its expertise.” Id. at 845 (citation
and internal quotation marks omitted). In contrast, we instructed
that the Commission retains the “final responsibility of making the

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decision as to the issues” in the administrative proceeding and “the
medical panel may not take over this responsibility.” Id. (citation
and internal quotation marks omitted). We reasoned that whether
the question to the panel incorporates the correct standard of legal
causation is inconsequential because once the panel opines on the
medical relationship between the two events, it is for the
Commission to determine whether the recent injuries are the
natural result of the prior industrial accident.17 Id. That “narrower
issue of legal causation” is properly determined by the ALJ
through “an analysis of the facts surrounding the subsequent
injury and analysis of the connection between the subsequent
injury and the original compensable industrial injury.” Id. at 846.

¶43 In the present case, both the ALJ and the Commission relied
on the conclusion of each of the medical experts that the prior
workplace accident contributed to some extent to Mr. Brown’s 2007
injuries. The ALJ then considered the facts surrounding the
subsequent injury and the connection between that injury and the
prior workplace accident. For example, the ALJ considered
whether the leap onto Mr. Brown’s back was so causally significant
that it negated the impact of the prior workplace accident. In doing
so, the ALJ gave Dr. Knoebel’s amended report “very little
evidentiary weight,” both because his attempt to incorporate legal
conclusions into his opinion “overstep[ped] his boundary of
expertise” and because even Dr. Knoebel acknowledged that the
prior back surgery had left Mr. Brown with “residual L4–5 disc
extrusion already narrowing the right neural fragment.” We agree
that Dr. Knoebel’s attempt to offer a legal opinion on whether the
2007 injuries were the natural result of the 2003 accident intruded
into the purview of the ALJ and the Commission. See id. at 845.

17. We also reasoned that even if “McKean requires more of a
causal connection than the phraseology of the inquiry to the
medical panel may suggest,” the panel’s assessment that the back
surgery was 70% the result of the prior industrial accident
dispelled any concern about the significance of the medical
connection. Intermountain Health Care, Inc. v. Board of Review of the
Indus. Comm’n, 839 P.2d 841, 846 (Utah Ct. App. 1992).

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Both the ALJ and the Commission combined the medical causation
information provided by the experts—including Dr. Knoebel’s
opinion that the 2003 accident was a “very minor contributing
cause”—with an examination of the facts and circumstances to
arrive at the conclusion that Mr. Brown had proved by a
preponderance of the evidence that the 2007 injuries were the
natural result of the prior industrial accident and his resultant L4–5
damage.

¶44 The Commission was correct in determining that the present
facts fall within the natural result legal standard. Despite
noninvasive techniques and surgery, Mr. Brown continued to
complain of lower back pain during the years after the workplace
accident. Indeed, only five months before the 2007 festival incident,
an MRI revealed both left‐sided and right‐sided abnormalities at
the L4–5 region of Mr. Brown’s spine. Dr. Knoebel agreed that the
2007 MRI, taken before the festival incident, showed lingering
damage to both sides of the L4–5 region of Mr. Brown’s back.
Similarly, Dr. Snook, Dr. Kabins, and Dr. Knoebel all concluded
that the 2003 accident was a contributing cause of the injuries he
suffered when the third party jumped on him in 2007. Finally, there
was no evidence that Mr. Brown would have suffered the same
injuries in 2007 if he had not injured the same region of his back in
the 2003 industrial accident. Accordingly, the Commission was
correct in concluding that Mr. Brown is entitled to additional
benefits pursuant to the Act under the natural result causation
standard.

CONCLUSION

¶45 The School District failed to preserve its argument that, in
this case, the Commission should have applied the causation
standard mandated by Allen v. Industrial Commission, 729 P.2d 15
(Utah 1986). Likewise, we accept the Commission’s factual findings
because the School District failed to challenge them properly. There
is substantial evidence in the record as a whole to support the ALJ’s
finding that there was no conflict among the physicians concerning
medical causation and, therefore, the Commission’s decision that

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the ALJ was not required to submit the case to a medical panel
does not exceed the bounds of reason and rationality. Finally, the
Commission correctly applied the Act to the facts of this case to
reach its conclusion that Mr. Brown’s 2007 injuries were a natural
result of the 2003 compensable workplace injury. For these reasons,
we decline to disturb the Commission’s decision.

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