Stage Department Store v. Labor Commission

2024 UT App 85
THE UTAH C OURT OF APPEALS
S TAGE DEPARTMENT S TORE AND
NEW HAMPSHIRE I NSURANCE C OMPANY ,
Petitioners and Cross-respondents,
v.
S HELLY M AGNUSON ,
Respondent and Cross-petitioner,
v.
LABOR C OMMISSION ,
Respondent.
Opinion
No. 20220825-CA
Filed June 6, 2024
Original Proceeding in this Court
Eric J. Pollart, Attorney for Petitioners
and Cross-respondents
Jay K. Barnes and Virginius Dabney, Attorneys for
Respondent and Cross-petitioner
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and A MY J. O LIVER concurred.
MORTENSEN, Judge:
¶1 	Shelly Magnuson fell at work and suffered injuries. She
made a claim for workers’ compensation benefits, ultimately
claiming that she was permanently disabled. In light of her years-
long history of significant pain complaints and a material dispute
in medical opinions from various physicians concerning her
diagnosis and the cause or causes of her symptoms, a medical
panel was appointed. Subsequently, an administrative law judge
(ALJ) confirmed a period of temporary disability but otherwise
largely ruled against Magnuson, whereupon she sought review
with the Appeals Board of the Utah Labor Commission (Appeals

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20220825-CA 	2 	2024 UT App 85
Board). The Appeals Board confirmed the ALJ’s determinations
but extended the term of temporary disability by one year. Both
the 	employer 	and 	Magnuson 	brought 	petitions 	for 	judicial
review. We decline to disturb the order of the Appeals Board.
BACKGROUND1
Pre-accident Medical Conditions
¶2 	Magnuson has suffered for many years from “chronic pain
symptoms affecting various parts of her body, including her back,
joints, arms, and legs.” In 2010, a doctor described her as having
an “off and on” history over the previous ten years with Sweet’s
syndrome, which caused “pain in her back, arms and legs.”
Magnuson was also diagnosed with Hashimoto’s disease and
fibromyalgia and had undergone several surgeries to her lower
leg for an Achilles tendon injury. Magnuson’s pain, “primarily in
[her] lower extremities,” continued for several years. While the
cause was unknown, 	the pain was associated with Sweet’s
syndrome. Following several years of increased dosages of pain
medication—reaching a point where they no longer provided
“relief for her chronic pain diagnosis,” Magnuson’s primary care
physician referred her to a pain-management expert, Dr. Spencer
Wells. In her initial visits with Dr. Wells, Magnuson described
“low-back pain, joint pain, . . . joint swelling, leg pain, muscle
cramps, muscle pain, and muscle weakness.” Dr. Wells prescribed
her 	a 	“new 	pain-medication 	regimen 	for 	what 	[Magnuson]
1. “In reviewing an order from the Commission, we view the facts
in the light most favorable to the Commission’s findings and
recite them accordingly.” C.R. England v. Labor Comm’n, 2021 UT
App 108, n.1, 501 P.3d 109 (cleaned up). As such, our recitation of
the facts and quotations are largely drawn from the Appeals
Board’s order.

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20220825-CA 	3 	2024 UT App 85
described as pain over her entire body and bilateral leg pain rated
at a seven” out of ten.
¶3 	In May 2014, just over six months before the accident at
issue 	in 	this 	case, 	Dr. 	Wells 	diagnosed 	Magnuson 	with
myofascial-pain syndrome, chronic pain syndrome, and chronic
fatigue syndrome. Then in November 2014, just a month before
the 	accident, 	Magnuson 	again 	described 	pain 	radiating
“throughout her entire body,” which “did not vary with the time
of day.” She described her leg pain as eight out of ten and as ten
out of ten while working.
Accident and Post-accident Work
¶4 	In December 2014, Magnuson was working as a store
manager for Stage Department Store (Stage). In mid-December,
she was in the back of the store receiving freight and sorting
boxes. As she stepped off a pallet that was “six to eight inches”
high, her right foot caught on some plastic wrap. Magnuson “fell
backwards onto a metal clothing rack before landing on the
concrete floor.” As she fell, her back “struck the leg of the clothing
rack,” her “left buttock” hit one of the rack’s wheels, and her right
arm “got caught on the rack.” Magnuson immediately felt pain in
her back and lay “prone on the floor for about 15 minutes” before
rolling onto her side and crawling down the hall to the break
room, where another employee eventually helped her to a chair.
¶5 	This accident occurred on the weekend and early the
following week, an injury report was completed, and Magnuson
returned to work. Until about May 25, 2015, she worked “light
duty,” before stopping entirely and receiving “paid temporary
benefits” until June 1, 2015.
Post-accident Medical Care
¶6 	Below 	we 	recount 	the 	medical 	care 	and 	evaluations
Magnuson received following the accident.

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20220825-CA 	4 	2024 UT App 85
¶7 	Dr. Brooks. A few days after the accident, Magnuson
sought treatment from Dr. David Brooks for “pain in her right arm
and low back.” She was diagnosed with “contusions on her right
arm and left buttock.” Dr. Brooks released Magnuson to “light-
duty work.” Later that month at a follow-up appointment,
Magnuson reported her pain as nine out of ten, with “low-back
pain radiating to her left leg,” while the pain in her right arm was
improving and the contusion discolorations were fading. She
again received a “light-duty” work release and was prescribed
physical therapy. In January 2015, she was “diagnosed with a
coccyx sprain.”
¶8 	Dr. Allen. Also in January 2015, Magnuson saw Dr. Lex
Allen for “low-back symptoms.” An MRI revealed “severe facet
degeneration 	bilaterally” 	and 	“moderate 	. 	. 	. 	spinal 	canal
narrowing” in portions of her spine. Dr. Allen noted tenderness
in Magnuson’s hips and administered injections, which were
unsuccessful in providing her relief.
¶9 	Dr. Wells. Magnuson continued to receive treatment from
Dr. Wells, the pain management physician she saw before her fall.
In February 2015, she saw him for “low-back and bilateral leg
pain.” Dr. Wells diagnosed her with—among other things—low-
back 	pain, 	lumbar 	spinal 	stenosis, 	and 	Sweet’s 	syndrome.
Magnuson received steroid injections in her lumbar spine, which
again did not provide relief. Dr. Wells increased the dosage of her
pain medication. At another visit in April 2015, Magnuson said
that her pain had worsened. Dr. Wells recommended she get a
surgery consultation.2 Dr. Wells also recommended a further
increase in her pain medication dosage, a new medication, and
pool therapy. In January 2016, Dr. Wells noted that Magnuson did
not respond well to the new medication or the pool therapy and
2. Magnuson received two surgical consultations, neither of
which resulted in a recommendation of surgery as treatment.

Stage v. Labor Commission
20220825-CA 	5 	2024 UT App 85
that she rated her low-back pain at eight out of ten. He opined that
she “could not work in her condition.”
¶10 	Dr. Callahan (Stage Medical Consultant). In July 2015,
Magnuson was examined by Dr. Michael Callahan at the request
of Stage. He diagnosed her with, among other things, a “possible”
bone contusion or fracture “hidden from x-rays.” Dr. Callahan
noted that Magnuson’s “complaints of ongoing low-back pain
radiating into her left leg had not improved as expected.” He
concluded that the pain was “medically caused by a direct blow
to 	her 	lumbosacral 	area 	on 	the 	date 	of 	the 	accident.” 	He
determined that she was “not medically stable” due to the work
injury.
¶11 	Dr. Vroenen. In January 2016, after Dr. Wells’s note about
pool therapy, Magnuson saw Dr. Diane Vroenen, who noted that
“most of . . . Magnuson’s pain symptoms were localized to the
sacral area.” Dr. Vroenen prescribed steroid patches, which
successfully helped with pain control. She also recommended
physical therapy, which Magnuson attended. Magnuson was
prescribed medication for chronic arthritis and muscle pain. Dr.
Vroenen did not opine on the medical cause of Magnuson’s pain
but opined that Magnuson had “reached maximum medical
improvement in a treatment note dated March 31, 2016.”
¶12 	PA Torgerson. In April 2016, Magnuson attended an
annual 	checkup 	with 	Karl 	Torgerson, 	a physician 	assistant.
Torgerson described Magnuson as “doing much better compared
to a year prior” and noted that Magnuson “was pleased with the
pain-management care” she received from Dr. Vroenen. He
additionally 	noted 	that 	Magnuson 	felt 	“her 	pain 	was 	well
tolerated and that she could walk without difficulty, but still had
pain while sitting.” There was no mention of low-back pain in the
notes from this appointment. In a July 2016 follow-up visit,
Magnuson mentioned difficulty walking because of back pain.
And in November 2016, there was a note of low-back pain and a
prescription for pain medication.

Stage v. Labor Commission
20220825-CA 	6 	2024 UT App 85
¶13 	Dr. Fotheringham (Stage Medical Consultant). In June
2016, Dr. Bart Fotheringham evaluated Magnuson at the request
of 	Stage. 	He 	recommended 	she 	stop 	using 	narcotic 	pain
medication. He opined that muscle relaxers and non-steroidal
anti-inflammatory medications were a better alternative. Dr.
Fotheringham concluded that Magnuson “qualified for a 5%
whole-person 	impairment 	rating 	due 	to 	her 	work 	injury.”
However, he noted that “he was not aware of the entirety of . . .
Magnuson’s prior history or conditions that would warrant
apportionment of the rating.”
¶14 	Dr. West. In August 2017, Magnuson visited Dr. Kristoffer
West for low-back and hip pain. In addition to other diagnoses,
he diagnosed her with chronic low-back and leg pain. Dr. West
recommended a spinal-cord stimulator trial.
¶15 	Dr. Workman. Dr. Ryan Workman, a physician in Dr.
Wells’s office, also recommended the spinal-cord stimulator trial.
He 	placed 	the 	stimulator 	in 	Magnuson 	in 	January 	2018.
“Magnuson reported pain relief at a rate of 60%.” The stimulator
was permanently placed in March 2018, with Magnuson receiving
continued 	follow-up 	appointments 	for 	adjustments 	to 	the
stimulator with Dr. Workman. In May 2018, Magnuson still rated
her pain as eight out of ten.
¶16 	For several years, Magnuson received pain-management
care, 	including 	steroid 	injections, 	narcotic 	prescriptions, 	a
lidocaine infusion, and a ketorolac injection. While Magnuson
experienced a “varying level of relief from the injections,” neither
those nor the physical therapy provided “lasting relief.” And her
reported pain level remained at eight out of ten.
¶17 	Dr. Theiler (Stage Medical Consultant). Dr. Anthony
Theiler evaluated Magnuson on behalf of Stage in November 2017
and again in April 2021. After the later evaluation, he opined that
Magnuson’s work accident medically caused “only a gluteal
contusion 	that 	had 	resolved.” 	He 	further 	concluded 	that

Stage v. Labor Commission
20220825-CA 	7 	2024 UT App 85
Magnuson 	sustained 	no 	permanent 	impairment 	due 	to 	the
accident and, thus, no ongoing medical care was necessary for the
injury. 	Dr. 	Theiler 	explained, 	“Magnuson’s 	pre-existing
conditions, including degenerative disc disease in her lumbar
spine, warranted a 5% whole-person impairment rating on a non-
industrial basis, but the work accident did not contribute to or
aggravate such conditions.” He noted that “Magnuson’s medical
records showed that she maintained an elevated level of pain
complaints leading up to the accident and continuing long after
. . . with no significant improvement of symptoms with any of the
various treatments or interventions she underwent.”
¶18 	Drs. Hicken. In September 2021, Magnuson met with Dr.
Gregory Hicken, an orthopedic surgeon, and Dr. Jeffrey Hicken, a
chiropractor, for “a permanent impairment rating evaluation.”
The report listed her pain as a level eight to nine out of ten, with
low-back pain and swelling and numbness in her feet. The
doctors’ report stated that her MRI results from 2015 to 2017
“showed 	worsening 	of 	spinal 	stenosis 	with 	greater
neuroforaminal narrowing in her lumbar spine.” The report
concluded that Magnuson “qualified for a 17% whole-person
impairment rating without apportionment for her work injury
based 	on 	her 	persistent 	low-back 	symptoms.” 	The 	report
emphasized that the doctors reviewed “more than 400 pages of
medical records” as part of Magnuson’s medical history, but the
report did not mention Magnuson’s chronic low-back complaints,
Sweet’s syndrome, or other diagnoses she had prior to the
accident. The Appeals Board pointed out that the report instead
relied on Magnuson’s denial of “‘any prior work-related or
significant low back injury . . . ’ as the basis for attributing the
entire impairment rating to work-related factors.”
Procedural History
¶19 	In December 2020, Magnuson filed an application for
hearing with the Utah Labor Commission (Commission). She
alleged that the work accident caused injury to her spine, left hip,

Stage v. Labor Commission
20220825-CA 	8 	2024 UT App 85
sacrum, and buttocks, which caused back and hip pain that had
not “improved or subsided” despite treatment. Magnuson sought
permanent 	total 	disability 	compensation, 	temporary 	total
disability compensation until medical stability, or permanent
partial disability compensation.
¶20 	In October 2021, the case proceeded to a hearing before an
ALJ. The ALJ issued an interim order and referred the case to a
medical panel (Panel) for consideration in accordance with the
applicable provision of the Utah Administrative Code. See Utah
Admin. Code R602-2-2.
¶21 	The 	Panel 	consisted 	of 	two 	medical 	doctors—an
orthopedic surgeon and a family medicine practitioner. The Panel
“carefully reviewed” all of Magnuson’s medical records from
both before and after the accident, interviewed and examined
Magnuson, and relied on the ALJ’s findings of fact from the
interim order. The Panel concluded in its report that as a result of
the accident, Magnuson (1) “sustained contusions to her right arm
and left buttock, including a hematoma,” and (2) was “noted to
have sacral tenderness and a possible fracture . . . evidenced by
tenderness . . . and localized swelling . . . that expectantly resolved
over the following few weeks.” When asked whether the accident
lit up, combined with, contributed to, accelerated, prolonged,
worsened, or made symptomatic a preexisting condition, the
Panel concluded that Magnuson had a “preexisting condition of
musculoskeletal/joint 	inflammation 	associated 	with 	Sweet’s
syndrome that was causing . . . lower extremity and back pain”
and had been receiving ongoing treatment for four years prior to
the 	industrial 	incident. 	The 	Panel 	also 	highlighted 	that
examinations after her work injury revealed “degenerative disc
and 	facet 	changes in 	the 	lumbosacral 	areas,” 	which 	would
“certainly have predated her industrial mishap.” The report also
noted that Magnuson received “extensive” treatment of leg, thigh,
and back pain before the accident in an effort to relieve “chronic
inflammatory joint pain.” The Panel concluded,

Stage v. Labor Commission
20220825-CA 	9 	2024 UT App 85
It is difficult to interpret which joint pain was
suffered 	because 	of 	chronic 	inflammation 	and
which pain was superimposed by her industrial
accident. As her pain intensity was at level 8/10 in
November 	2014 	prior 	to 	her 	injury, 	and 	was
requiring additional pain medication, it becomes
very difficult to differentiate it from the claimed 8/10
level 	of 	pain 	afterwards, 	following 	the 	2014
accident.
. . . .
[T]he 	problems 	caused 	by 	the 	industrial
accident: right arm contusion, left superior buttock
contusion, and sacral contusion, combined with her
previous inflammatory problem of the back and
lower 	extremities 	to 	cause 	a 	constellation 	of
symptoms including, low back pain, . . . sacral
swelling, . . . and lumbar pain . . . . The manifestation
of the problems caused by the industrial accident
was left thigh and hip pain and right arm pain, mild
sacral 	pain 	which 	were 	temporary. 	No 	sacral
fracture was identified and these problems resolved
as expected in up to three months. The remaining
complaints, problems, and treatments have been
caused by her chronic inflammatory condition.
The Panel determined that Magnuson became medically stable, or
in other words had reached maximum medical improvement, by
March 31, 2014. Magnuson filed two objections to the Panel’s
report, requesting (1) that the Panel clarify how it separated
injuries and conditions related to the accident from those that
were preexisting and (2) that the Panel “be directed to disregard”
the medical reports from Dr. Theiler due to alleged errors they
contained and then issue a new report because the Panel may
have been “improperly influenced” by Dr. Theiler’s report.

Stage v. Labor Commission
20220825-CA 	10 	2024 UT App 85
¶22 	In April 2022, the ALJ issued her final order and denied
Magnuson’s objections. The ALJ first determined that the Panel
“relied on objective evidence and clearly set[] out its opinions.”
Therefore, there was no ambiguity in the report in need of
correction. Second, she concluded that there was no basis to strike
Dr. 	Theiler’s 	report. 	The 	ALJ 	determined 	that 	Magnuson
established medical causation for the “left thigh, hip, right arm,
and mild sacral pain” she suffered from the accident and that she
reached medical stability from these conditions on March 31,
2015. 	The 	order 	dismissed 	outright 	Magnuson’s 	claims 	for
permanent partial and total disability compensation as the ALJ
found there were no permanent injuries or functional restrictions
as a result of the accident. The ALJ also dismissed Magnuson’s
claim for temporary total disability because Magnuson worked
through May 26, 2015, and reached medical stability on March 31
of that same year.
¶23 	Magnuson challenged the ALJ’s order and asked the
Appeals Board to review the denial. The Appeals Board issued an
order modifying the ALJ’s decision. The order upheld the ALJ’s
decision except for extending the date of medical stability, or
“maximum medical improvement,” to March 31, 2016—a year
later than the ALJ’s determination. The Appeals Board reasoned
that the evidence showed a “discrete change in . . . Magnuson’s
condition 	following” 	the 	treatment 	she 	received 	from 	Dr.
Vroenen, at which point Dr. Vroenen pronounced Magnuson to
reach maximum improvement on March 31, 2016. The Appeals
Board found this evidence was “a more compelling indicator of
medical stability.” Magnuson once again raised critiques of the
Panel’s conclusions, particularly any reliance on Dr. Theiler’s
opinion 	and 	the 	use 	of 	the 	term 	“independent 	medical
evaluation” by Stage’s hired medical examiners. The Appeals
Board 	determined 	these 	critiques 	were 	“unavailing” 	and
dismissed them. Due to the change in date of medical stability, the
Appeals 	Board 	determined 	that 	Magnuson 	was 	entitled 	to
temporary total disability from June 1, 2015, to March 31, 2016.

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20220825-CA 	11 	2024 UT App 85
¶24 	Stage petitions for judicial review, and Magnuson cross
petitions for judicial review.
ISSUES AND STANDARDS OF REVIEW
¶25 	Stage argues that the Appeals Board erred in setting aside
the ALJ’s determination that Magnuson reached medical stability
by March 31, 2015.3 The Appeals Board’s finding on medical
stability is a factual determination, Waste Mgmt. & Indem. Ins. of N.
Am. v. Labor Comm’n, 2012 UT App 339, ¶ 5, 293 P.3d 384, which
3. In this proceeding for judicial review, Stage also argues that the
Appeals Board erred by ordering benefits to Magnuson without
crediting Stage for any benefits it may have already paid to
Magnuson, thus resulting in her receiving a double benefit.
Magnuson concedes that “to the extent the Appeals Board’s order
required duplicate payment of . . . benefits it should be set aside.”
We do not believe it is necessary for our court to address this
issue, as it can still be fully resolved between the parties in further
administrative proceedings. The Appeals Board’s order states that
Stage is to “pay temporary total disability compensation to . . .
Magnuson for the period of June 1, 2015, to March 31, 2016, a
period of 43.43 weeks, at a rate of $390 per week for a total of
$16,937.70.” There is still plenty of room within the order for Stage
to, for example, subtract any amount that has already been paid
from 	the 	required 	total 	when 	complying 	with 	the 	order.
Therefore, if the order does in fact require Stage to pay double
benefits, the Appeals Board may address that issue how it sees fit.
We note that on the facts of the record, it does not appear
that there will even be an issue of double payments. The Appeals
Board found that Stage paid Magnuson “temporary benefits”
until June 1, 2015. The order requires payment of benefits starting
on June 1, 2015, which would not create any overlap in benefit
payments. If the date from the court’s findings is incorrect, Stage
should have addressed that mistake in its briefing, which it did
not do.

Stage v. Labor Commission
20220825-CA 	12 	2024 UT App 85
we will only disturb “if it is not supported by substantial evidence
when viewed in light of the whole record,” Zepeda v. Labor
Comm’n, 2021 UT App 140, ¶ 20, 504 P.3d 712 (cleaned up).
¶26 	Magnuson raises several issues in her cross-petition for
judicial review. First, she asserts that the Appeals Board applied
the incorrect legal standard for medical causation. “Whether the
Commission has applied the correct legal standard in reaching its
medical causation finding is a legal question, which we review for
correctness.” Cox v. Labor Comm’n, 2017 UT App 175, ¶ 12, 405
P.3d 863 (cleaned up).
¶27 	Second, she asserts that the Appeals Board’s determination
that the accident did not in any way aggravate, worsen, or
accelerate Magnuson’s preexisting conditions is not supported by
substantial evidence. “[A] challenge to an administrative agency’s
finding of fact is reviewed for substantial evidence.” Provo City v.
Utah Labor Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242.
¶28 	Third, she asserts that the Appeals Board erred when it
denied Magnuson’s objection and did not instruct the Panel that
Stage’s medical examiners were not independent. We review such
decisions “under an abuse of discretion standard, providing relief
only if a reasonable basis for that decision is not apparent from
the record.” Bade-Brown v. Labor Comm’n, 2016 UT App 65, ¶ 8, 372
P.3d 44 (cleaned up).4
4. As Stage points out, Magnuson’s briefs did not abide by our
rules of appellate procedure, which require the party to provide a
citation to the record for each issue “showing that the issue was
preserved for review . . . or a statement of grounds for seeking
review of an issue not preserved.” Utah R. App. P. 24(a)(5)(B); see
also id. R. 24A(c). Furthermore, Magnuson makes no effort in her
reply brief to address this issue, even when identified and
highlighted by Stage. Magnuson’s failure is grounds enough for
(continued…)

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20220825-CA 	13 	2024 UT App 85
ANALYSIS
I. Date of Medical Stability
¶29 	As discussed, we will overturn a factual determination of
the Appeals Board only where no substantial evidence exists to
support the decision. See Zepeda v. Labor Comm’n, 2021 UT App
140, ¶ 20, 504 P.3d 712. This is a relatively high bar for an appellant
to meet. While “substantial evidence is more than a mere scintilla
of evidence,” it is still “something less than the weight of the
evidence.” Cook v. Labor Comm’n, 2013 UT App 286, ¶ 14, 317 P.3d
464 (cleaned up). A decision by the Appeals Board “meets the
substantial evidence test when a reasonable mind might accept as
adequate the evidence supporting the decision.” Id. (cleaned up).
¶30 	Stage and Magnuson each argue that the Appeals Board’s
decision was not supported by substantial evidence. Stage argues
that the evidence supports the earlier 2015 date recommended by
the Panel and adopted by the ALJ. Magnuson argues that the
Appeals Board “ignored” evidence supporting a “longer period
of 	medical 	instability 	and 	a 	greater 	permanent 	impairment
rating.” To support their arguments, the parties each outline in
their briefing significant variations in the evidence and medical
reports. We acknowledge that there is evidence on both sides of
this 	issue—but 	that 	fact 	does 	not 	necessitate 	reversal. 	See
Hutchings v. Labor Comm’n, 2016 UT App 160, ¶ 30, 378 P.3d 1273
(“We will not reweigh the evidence and independently choose
which inferences we find to be most reasonable; rather, we defer
to the Commission’s findings when reasonably conflicting views
arise, as it is the Commission’s province to draw the inferences
and resolve these conflicts.” (cleaned up)). All that is required
here is substantial evidence that “a reasonable mind might accept
as adequate the evidence supporting the decision.” Id. (cleaned
us to dismiss her second and third claims as unpreserved;
nevertheless, we will address the claims on the merits as at least
some aspects of them do appear to be preserved.

Stage v. Labor Commission
20220825-CA 	14 	2024 UT App 85
up). That does not mean that the decision must be the only
possible conclusion someone could reach based on the evidence—
rather, it means only that the decision must be a reasonable one.
In some cases, there may be more than one possible reasonable
conclusion supported by the evidence.
¶31 	We conclude—just as the Appeals Board did—that a
reasonable mind very well might accept as adequate the evidence
supporting a change to the date of medical stability. In its order,
the Appeals Board extended the date of medical stability in the
ALJ’s order from March 31, 2015, to March 31, 2016. The ALJ had
relied on the recommendation of the Panel when it concluded that
the 2015 date was appropriate. In contrast, the Appeals Board
determined that “other medical evidence [was] more persuasive
than the [Panel’s] opinion.” The Appeals Board reasoned that Dr.
Vroenen’s report in Magnuson’s medical 	record showed “a
discrete change” in her condition after undergoing Dr. Vroenen’s
targeted treatments of her sacral symptoms. These treatments
included steroid patches that provided “excellent pain control.”
Dr. 	Vroenen 	concluded 	that 	Magnuson 	“reached 	maximum
improvement in a treatment note dated March 31, 2016.” The
Appeals Board found this evidence was “a more compelling
indicator 	of 	medical 	stability” 	than 	the 	Panel’s 	“general
expectation for the condition to have resolved within three
months of the injury without specific medical evidence to support
such date.” When looking at Magnuson’s medical record, this
conclusion 	is 	one 	that 	a 	reasonable 	person 	very 	well 	may
determine is adequately supported. Thus, because the Appeals
Board’s decision to modify the date of medical stability was a
reasonable conclusion supported by substantial evidence, we will
not disturb it.
II. Applicable Legal Standard for Medical Causation
¶32 	Under the Utah Workers’ Compensation Act, an employee
injured “by accident arising out of and in the course of the
employee’s employment” is entitled to “compensation for loss

Stage v. Labor Commission
20220825-CA 	15 	2024 UT App 85
sustained on account of the injury.” Utah Code § 34A-2-401(1).
“We have recognized that this statute creates two prerequisites
for a finding of a compensable injury. First, the injury must be ‘by
accident.’ Second, the language ‘arising out of and in the course
of employment’ requires . . . a causal connection between the
injury and the employment.” Murray v. Utah Labor Comm’n, 2013
UT 38, ¶ 44, 308 P.3d 461 (cleaned up) (quoting Utah Code § 34A-
2-401(1)). The first prerequisite is not at issue here, so we turn
directly to the second.
¶33 	To establish the required causal connection, a party must
show that the workplace’s “conditions or activities . . . were both
the medical cause and the legal cause of [the] injury.” Id. ¶ 45. The
issue raised by Magnuson concerns only the medical cause of her
injury.
¶34 	Magnuson argues that the Appeals Board applied the
incorrect legal standard to its medical causation analysis. She
contends that the Appeals Board should have applied the two-
part test for medical causation laid out in Cox v. Labor Commission,
2017 UT App 175, 405 P.3d 863. To recover under Cox, the 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. However, in Morris v. Labor Commission, 2021 UT App 131,
503 	P.3d 	519, 	our 	court 	clarified 	that 	health 	issues 	and
developments 	which 	prevent 	a 	claimant 	from 	returning 	to
baseline but are exclusively the result of a preexisting condition
rather than industrial factors do not entitle the claimant to
recovery. Id. ¶ 21.

Stage v. Labor Commission
20220825-CA 	16 	2024 UT App 85
¶35 	Magnuson misconstrues the Appeals Board’s analysis. The
Appeals Board did in fact explicitly lay out both the test from Cox
and the clarification from Morris. It then correctly applied both
these legal standards to Magnuson’s case—though it admittedly
could have done so a bit more clearly. The Appeals Board
determined “the medical evidence show[ed] that [Magnuson]
was experiencing significant and chronic pain for years leading
up to the 2014 work accident and that she continued to experience
the same symptoms for several years after the accident.” The
Appeals Board rejected Magnuson’s theory that the “effects of the
work injury combined with her pre-existing condition such that
her subsequent complaints” were related to the accident. After
“carefully” reviewing the Panel’s reasoning, the Appeals Board
concluded that Magnuson’s current condition was “separate from
her 	work 	injuries 	and 	not 	causally 	connected 	to 	the 	work
accident.” Thus, although it did not explicitly say so, the Appeals
Board determined that Magnuson did not satisfy the first step of
Cox as her current condition was due to her preexisting conditions
rather than work-related injuries. Magnuson even concedes in her
brief that the Appeals Board concluded “that the work accident
medically caused acute contusions to . . . Magnuson’s right arm,
back, left buttock, and sacrum, which returned to their baseline
status.”5 These injuries are the only injuries that the Appeals
Board determined were a result of the accident and are—as
determined by the Panel and adopted by the Appeals Board—all
unrelated 	to 	her 	preexisting 	conditions. 	Magnuson 	further
5. We acknowledge that the Appeals Board confusingly used the
phrase “returned to their baseline” when it did not need to move
to step two of the Cox analysis. However, when viewed in the
context of the Appeals Board’s order, it is clear it was discussing
an acute injury rather than aggravation of a preexisting condition.
Furthermore, even if this were a discussion of a preexisting
condition, the Appeals Board determined that the condition had
returned to baseline, which would satisfy the second step of Cox;
thus, Magnuson’s claim would still fail.

Stage v. Labor Commission
20220825-CA 	17 	2024 UT App 85
concedes this point when she states in her brief, “The Appeals
Board found that the industrial accident in no way caused any
degree of worsening or progression of . . . Magnuson’s pre-
existing condition.”
¶36 	Magnuson argues that this conclusion conflicts with the
Appeals Board’s adoption of the Panel’s statement that these
injuries “combined” with her preexisting conditions “to cause a
constellation of symptoms.” But this statement from the Panel
was a global one explaining that Magnuson had a “constellation”
or myriad of health conditions, which is not the same as saying
that the preexisting conditions were aggravated or worsened by
the accident. While the panel inventoried her chronic conditions,
it specifically opined that the only “manifestation of the problems
caused by the industrial accident was left thigh and hip pain and
right arm pain, mild sacral pain,” all of which it explained were
“temporary.”
¶37 	Accordingly, 	we 	reject 	Magnuson’s assertion 	that 	the
Appeals Board applied the wrong standard.
III. Preexisting Conditions
¶38 	Magnuson next argues that even if the Appeals Board
“adequately addressed the medical causation requirements,”
substantial evidence does not support the “factual determination
that . . . Magnuson’s pre-existing conditions were not aggravated
or worsened to any degree under the first step of Cox.” See Cox v.
Labor Comm’n, 2017 UT App 175, ¶ 20, 405 P.3d 863. As we have
noted, the Appeals Board’s factual determinations are given a
high level of deference because the substantial evidence test is met
“when a reasonable mind might accept as adequate the evidence
supporting the decision.” Cook v. Labor Comm’n, 2013 UT App 286,
¶ 14, 317 P.3d 464 (cleaned up). Our court will not “reweigh the
evidence and independently choose which inferences we find to
be most reasonable; rather, we defer to the Commission’s findings
when reasonably conflicting views arise.” Hutchings v. Labor

Stage v. Labor Commission
20220825-CA 	18 	2024 UT App 85
Comm’n, 2016 UT App 160, ¶ 30, 378 P.3d 1273 (cleaned up).
Magnuson’s argument fails as there are no grounds to overturn
the 	strong 	deference 	given 	to 	the 	Appeals 	Board’s 	factual
determination.
¶39 	Magnuson argues that the Appeals Board relied entirely on
the 	Panel’s 	report 	but 	that 	the 	report 	does 	not 	support 	a
conclusion that the “accident in no way caused any degree of
worsening or progression” of her preexisting conditions. To
support 	this 	contention, 	Magnuson 	misquotes 	the 	Panel’s
response to this question: did the accident “light up, combine
with, 	contribute 	to, 	accelerate, 	prolong, 	worsen, 	or 	make
symptomatic a preexisting condition to any degree?” Among
other errors, Magnuson adds the adverb “very” to the Panel’s
answer that it “is difficult to interpret which joint pain was
suffered because of chronic inflammation and which pain was
superimposed by [Magnuson’s] industrial accident.” The Panel
continued that because Magnuson’s “pain intensity was at a level
8/10 in November 2014 prior to her injury, and was requiring
additional 	pain 	medication, 	it 	becomes 	very 	difficult 	to
differentiate it from the claimed 8/10 level of pain afterwards,
following the 2014 accident.” Magnuson argues that the Panel
noted both that at her first examination post-accident she claimed
her “low back hurt the most” and that the pain continued while
her other symptoms, i.e., the contusions, resolved. Magnuson
contends that the Panel provided no information as to whether it
was 	able 	to 	differentiate 	Magnuson’s 	post-accident 	and
preexisting 	conditions 	nor 	what 	the 	cause 	was 	of 	what 	it
interpreted as the progression of her preexisting conditions.
¶40 	But this is not an accurate characterization of the Panel’s
report. The Panel did in fact explain how it differentiated between
Magnuson’s conditions. The Panel reasoned that the “fact that her
pain, though somewhat migratory, has been persistent, and is
unrelenting, supports progression of her chronic inflammatory
disorder, Sweet’s syndrome, 	as the 	proximate 	cause 	of 	her
persistent 	pain 	and 	functional 	complaints.” 	The 	Panel

Stage v. Labor Commission
20220825-CA 	19 	2024 UT App 85
emphasized that Magnuson had “suffered similar problems for
four years prior” to the accident and that after the injury, she had
received treatments for ailments such as sacroiliitis, “lumbar
radiculopathy, . . . hip pain and generally inflammation” and had
“never reduced her pain below level 8/10, the level of chronic
inflammatory pain prior to injury.” These symptoms are separate
and apart from the contusions the Panel clearly marked as the
only injuries resulting from the work accident. Furthermore, the
Appeals Board’s reliance on the Panel’s report does not require
the Panel to determine the cause of any progression in her
preexisting conditions, only that the progression was not a result
of the accident. Even if there is conflicting evidence here, which
we are not convinced there is, we do not reweigh the evidence but
defer to the Appeals Board’s findings, which appropriately relied
on the Panel’s report. See id.
¶41 	To further her argument that the Appeals Board erred,
Magnuson attempts at length to educate us on the definition of
and symptoms associated with Sweet’s syndrome.6 Magnuson
claims that the Panel’s conclusion that her current symptoms and
limitations are a result of Sweet’s syndrome is further evidence of
the unreliability of the report because the disease’s symptoms
manifest differently than described by the Panel. Magnuson took
6. Magnuson appears to also argue that the Panel members were
unqualified to opine on the role Sweet’s syndrome played in
Magnuson’s health. Magnuson contends that because neither of
the two Panel members specialized in dermatology or had related
experience, they were unqualified to offer opinions on the effect
Sweet’s 	syndrome 	had 	on 	Magnuson’s 	health. 	Magnuson
provides us with no record citation where she raised this issue
below. 	Objection 	to 	a 	medical 	panel’s 	report, 	including 	a
complaint against their competency, must be made within 20 days
of the report being served on the parties. Utah Adim. Code R602-
2-2(B). This argument is therefore unpreserved, and we will not
address it further.

Stage v. Labor Commission
20220825-CA 	20 	2024 UT App 85
a similar approach with the Appeals Board. The Appeals Board
correctly noted that the information Magnuson provided was of
“little evidentiary value,” and the Appeals Board instead relied
on the Panel’s explanation supported by the treatment notes of
numerous treating physicians and examiners—including those
Magnuson hired. Moreover, the medical information Magnuson
provided and opined on in her brief is inappropriate for this court
to consider because she provided it through briefing by her
counsel rather than through the medical reporters provided to the
Appeals Board. Cf. Hymas v. Labor Comm’n, 2008 UT App 471, ¶ 11,
200 P.3d 218 (declining to disturb the Commission’s decision to
exclude lay testimony offered in support of medical causation).
¶42 	Thus, Magnuson’s arguments are unavailing, and her
claim fails as the Appeals Board’s decision is supported by
substantial evidence.
IV. Denial of Magnuson’s Objections
¶43 	Magnuson’s final argument is that the Appeals Board
should have allowed her objections to Stage’s medical examiners
labeling themselves as “independent” and should have instructed
the Panel that the reports from those examiners were not in fact
independent. Magnuson took particular issue with Dr. Theiler’s
report.
¶44 	Magnuson argues that her objection should have been
sustained because, under rule 35 of the Utah Rules of Civil
Procedure, use of the phrase “independent medical examiner”
(IME) is discouraged. See Utah R. Civ. P. 35 advisory committee’s
note to 2017 amendment (“The parties and the trial court should
refrain 	from 	the 	use 	of 	the 	phrase 	‘independent 	medical
examiner,’ 	using 	instead 	the 	neutral 	appellation 	‘medical
examiner,’ ‘Rule 35 examiner,’ or the like.”). Magnuson contends
that because the Commission has no specific rules regarding this
issue, rule 35 applies. She cites Barker v. Labor Commission, 2023 UT
App 31, 528 P.3d 1260, cert. denied, 534 P.3d 751 (Utah 2023), to

Stage v. Labor Commission
20220825-CA 	21 	2024 UT App 85
support this conclusion. Id. ¶ 11 (holding that rule 35’s recording
provision 	applied 	because 	it 	was 	not 	in 	conflict 	with 	the
Commission’s rules, which are silent on the issue). However, this
reasoning does not compel a change in the result here.
¶45 	Magnuson is correct that an IME is far from independent
due 	to 	the 	conflict 	of 	interest 	arising 	between 	the 	medical
examiners 	and 	the 	insurance 	companies 	paying 	their 	bills.
However, in the context of Commission cases, as recognized by
Utah caselaw, this is a very common term—one any member of
an 	experienced 	medical 	panel 	would 	be 	familiar 	with 	and
understand the complexities of. Our supreme court has explained
that “the purpose of an IME, in the workers’ compensation
setting, is to provide the carrier, and potentially the relevant fact
finder, with independent information on the claimant’s injuries.”
Kirk v. Anderson, 2021 UT 41, ¶ 13, 496 P.3d 66. The court
continued 	that 	IMEs 	“play 	a 	vital 	role 	in 	the 	overall
administration of health care benefits and workers’ compensation
benefits” 	as 	IMEs 	offer 	“an 	unbiased 	opinion 	assessing
specifically whether the patient’s work-related injury requires
treatment, while the injured person’s own health care provider is
able 	to 	administer 	care 	without 	influence 	by 	insurance
companies.” Id. ¶ 23. Through IMEs, “patients enjoy unbiased
care while the insurance companies still benefit from the opinions
of medical professionals.” Id.7
7. Magnuson argues that this language from Kirk v. Anderson, 2021
UT 41, 496 P.3d 66, in fact supports her argument as the case
addressed 	whether 	a 	physician-patient 	relationship 	existed
between an IME and the examined worker. Id. ¶ 10. The court
concluded that to “impose a categorical duty of care running from
the independent medical examiner to the subject would put the
examiner in an untenable position, if not create an outright
conflict of interest” due to the independent medical examiner’s
contractual relationship with the employer or insurer. Id. ¶ 25.
(continued…)

Stage v. Labor Commission
20220825-CA 	22 	2024 UT App 85
¶46 	In denying Magnuson’s objection, the 	Appeals Board
correctly pointed to the fact that while these IMEs were completed
on behalf of Stage and were “therefore not independent,” “this
misnomer 	is 	well-recognized 	in 	the 	workers’ 	compensation
setting.” We agree with the Appeals Board’s reasoning that “there
is no indication that the veteran members of the [Panel] were
confused” by the use of the label “independent.” The difference
between Magnuson’s treating and consulting physicians and
those retained by Stage “was clear from the records” the Panel
reviewed. Magnuson attempts in her reply brief to point us to
evidence in the record supporting the Panel’s alleged confusion
over the role of Stage’s medical examiners. But we find this
evidence both unconvincing and inappropriately raised for the
first time in her reply brief.
Magnuson argues that this reasoning—the conflict of interest—is
exactly why Dr. Theiler and others hired by Stage were incorrectly
labeled as “independent.” However, the court’s reasoning in Kirk
continues that it can “safely say that an independent medical
examiner who has otherwise conducted an [examination] in good
faith and has met their standard of care has fulfilled their duty,
regardless of whether the results were favorable to the insurer or
to the . . . subject.” Id. Thus, in meeting the standard of care, the
independent 	medical 	examiner 	must 	reach 	a 	conclusion
regardless of, or in other words, independent of, which party
those results favor. We therefore see Kirk as helpful and applicable
in making our determination that the Appeals Board correctly
overruled 	Magnuson’s 	objection 	to 	use 	of 	the 	word
“independent.” Furthermore, to the extent that true independence
is impossible due to this conflict of interest, use of the term IME is
one which members of a medical panel would be well-versed in.
This term would not cause confusion for seasoned panel members
familiar with the nature of such examinations.

Stage v. Labor Commission
20220825-CA 	23 	2024 UT App 85
¶47 	Thus, the Appeals Board did not abuse its discretion when
it denied Magnuson’s objections.8
CONCLUSION
¶48 	For the foregoing reasons, we conclude that the Appeals
Board’s order modifying the ALJ’s decision was sound and the
Appeals 	Board 	did 	not 	abuse 	its 	discretion 	by 	denying
Magnuson’s objections. We, therefore, decline to disturb the
Appeals Board’s order.
8. Still, we recognize that the reasons that the advisory committee
gave for moving away from identifying adverse medical exams as
independent, see Utah R. Civ. P. 35 advisory committee’s note to
2017 amendment, may also be relevant here, although the chance
of prejudice is far more removed in a proceeding before an ALJ or
the Commission than it would be before a jury. The Commission
might be well-served to adopt a rule using different nomenclature
for such exams.