Zepeda v. Labor Commission

2021 UT App 140
THE UTAH COURT OF APPEALS
CARLOS ZEPEDA,
Petitioner,
v.
LABOR COMMISSION, RELIABLE AUTO MECHANICS, AND
FARMINGTON CASUALTY COMPANY,
Respondents.
Opinion
No. 20190938-CA
Filed December 16, 2021
Original Proceeding in this Court
Andrew M. Wadsworth, Attorney for Petitioner
Christin Bechmann and Jeffrey A. Callister,
Attorneys for Respondents Reliable Auto Mechanics
and Farmington Casualty Company
JUDGE DIANA HAGEN authored this Opinion, in which JUDGE
RYAN M. HARRIS and SENIOR JUDGE KATE APPLEBY concurred. 1
HAGEN, Judge:
¶1 While working for Reliable Auto Mechanics, Carlos
Zepeda was injured when he used his right arm and shoulder to
catch a transmission that had begun to fall from a vehicle on an
overhead lift. He seeks judicial review of the Utah Labor
Commission’s decision denying him both temporary and
permanent total disability compensation as a result of that
accident. Because we see no error in the Commission’s legal
determinations and conclude that its factual findings are
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

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supported by substantial evidence, we decline to disturb its
decision.
BACKGROUND2
¶2 Zepeda was working for Reliable as a full-time
automobile mechanic when, on October 10, 2014, he was
assigned to repair a transmission. The vehicle was raised on a lift
and, as Zepeda was attempting to remove the transmission, the
part began to fall. Zepeda “struggled” to prevent the 150- to 200-
pound transmission from falling and braced it with his right arm
and shoulder until a coworker was able to help him lower it to
the ground. Immediately after the accident, Zepeda described
“seeing stars” and was “really hurting” in his chest and neck. He
reported the accident that day to his supervisor, who told him to
go home and ice the pained area.
¶3 Zepeda remained home from work for three days. Upon
returning to his regular duties, he felt “very sore” in his
shoulder, neck, and back. In the weeks that followed, Zepeda
continued experiencing “significant pain” and sought treatment
from a chiropractor, who provided multiple diagnoses as to
what was causing his pain. On December 1, after receiving
authorization from Reliable and its insurer, Zepeda sought
medical treatment at an urgent care center. He was initially
cleared for “modified” work activities and given some lifting
and reaching restrictions, but was released to full-duty work on
2. In reviewing a decision by the Commission, “we view the facts
in the light most favorable to the [Commission’s] findings.”
Fogleman v. Labor Comm’n, 2015 UT App 294, n.1, 364 P.3d 756
(cleaned up). We recite the facts in accordance with that
standard.

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December 8. Reliable fired Zepeda on December 13.3 Zepeda has
not been employed since.
¶4 On March 5, 2015, Zepeda filed an application for hearing
with the Commission (First Action), seeking permanent partial
disability benefits related to his injuries from the accident. In
connection with the First Action, Reliable commissioned a
medical evaluation by an orthopedic specialist, who diagnosed
Zepeda with “traumatic rotator cuff tendinopathy with post
traumatic acromioclavicular joint arthrosis” in his right
shoulder.4 The specialist also opined that Zepeda had not yet
reached maximum improvement, but could do so in a six-week
to four-month timeframe if he underwent therapeutic injections
or, if injections did not work, surgery. Finally, the specialist
3. The reason for Zepeda’s termination is not clear from the
record, but by Zepeda’s own account he “wasn’t doing . . . good
work” after the accident because he “was feeling worse and
worse and worse,” and he “could tell that [his coworkers] looked
at [him] badly.”
4. The rotator cuff is “a group of muscles and tendons” that
keep the “upper arm inside [the] shoulder socket.” Rotator
Cuff Tendinopathy, WebMD, https://www.webmd.com/pain-
management/rotator-cuff-tendinopathy [https://perma.cc/XS6W-
L5XV]. “Rotator cuff tendinopathy is when a tendon in [the]
shoulder has tiny tears in it or is inflamed,” and describes a
category of conditions including tendinosis and tendinitis. Id.
The acromioclavicular joint is where the clavicle and shoulder
blade meet, and arthrosis “develops when the cartilage in [this]
joint begins to wear out,” causing pain and limiting arm
mobility. See Acromioclavicular Joint Arthritis of the Shoulder, UC
Davis Health, https://health.ucdavis.edu/orthopaedics/specialties
/sports-medicine-info/ac-joint-rehab.html [https://perma.cc/53F9-
7CZ9].

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opined that there was “a direct cause and relationship between
the diagnosis . . . and the October 10, 2014 industrial accident.”
¶5 Driven in large part by the results of the medical
evaluation, in January 2016 the parties “stipulate[d] to the
dismissal of [the First Action] without prejudice, on the grounds
that [Reliable and its insurer had] accepted liability for the
industrial accident claim that [was] the subject of [the First
Action].” The parties’ stipulation “did not outline any specifics”
regarding that acceptance of liability.
¶6 Over the next two years, Zepeda sought additional
treatment for his neck, shoulder, and upper back pain from
several physicians and received multiple diagnoses. On
February 21, 2018, Zepeda filed a second application for hearing,
this time seeking permanent total disability compensation,
temporary total disability compensation, and medical expenses.
After an initial evidentiary hearing before an administrative law
judge (ALJ), the case was referred to a medical panel because
there were “conflicting medical opinions regarding medical
causation.”
¶7 The panel conducted a physical examination of Zepeda
and reviewed his medical records and imaging results, as well as
surveillance video footage taken by a private investigator, who
was hired by counsel for Reliable and its insurer. The video
showed Zepeda engaged in ordinary tasks without exhibiting
any signs of impairment or pain, including: “carrying two
garbage bags, one in each arm,” and loading them into a vehicle;
“pushing a shopping cart with both arms while lifting groceries
with his left arm”; and “bending over to pick up a brick/rock
with his right arm from the ground, [then] placing it in front of
the . . . door.” The panel submitted an initial written report
followed by a supplemental report addressing additional
questions posed by the ALJ. In those reports, the panel
concluded that Zepeda had “no objective injury found on x-ray,

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cervical spine MRI, shoulder MRI, or on nerve conduction
study” and he had “no specific physical condition that required
treatment in relation to his industrial injury.” Instead, the panel
found that the industrial accident had caused only temporary
soft tissue strains or contusions to his neck, shoulder, upper
back, and lower back and that there was “no medical evidence”
for any of the other diagnoses Zepeda had received.
¶8 According to the panel, Zepeda would have been able to
continue working with restricted duties while healing from the
injury and had not been “required to miss work,” as evidenced
by the fact that he had “returned to work after the injury until
the time he was fired.” The panel explained that the “normal
course for soft tissue and contusion strain would be a few days
to a few months in most cases.” Although the panel noted that
Zepeda’s recovery “may have plateaued much earlier,” it gave
him the benefit of the doubt and concurred with his
chiropractor’s assessment that Zepeda had “reached medical
stability on his industrial injury on August 31, 2015.” The panel
further concluded that Zepeda had no current physical injury or
work limitations, did not require future medical treatment “for
any musculoskeletal diagnosis,” and did not qualify for an
impairment rating.
¶9 Because there had been “no objective medical findings
that would explain the symptoms reported by [Zepeda],” the
panel expressed concern that Zepeda displayed signs of
malingering and chronic pain behavior.5 The panel noted that
5. “Malingering is the willful, deliberate, and fraudulent feigning
or exaggeration of the symptoms of illness or injury, done for the
purpose of a consciously desired end.” State v. Parry, 2018 UT
App 20, ¶ 3 n.2, 414 P.3d 1044 (cleaned up). According to the
panel, chronic pain behavior is a “psychiatric condition” where
(continued…)

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Zepeda “exhibit[ed] this behavior, and [he had] specifically
stated that he will continue to search for an answer to his pain,
despite having almost no response to any treatment in the face of
no physiologic reason for his pain.” The panel suggested that
Zepeda might “benefit from neuropsychological evaluation to
determine [the] degree of malingering vs. chronic pain
behavior,” as well as “cognitive therapy or Fear Avoidance
Behavioral Therapy (FABT).” The panel emphasized that there
had been “no evidence found of a current physical injury” and
that FABT was only recommended to “help him improve his
functional ability by helping him get over any conscious or
unconscious fears that there is something wrong and that
activity will cause further damage or cause him not to heal from
his perceived disability.”
¶10 Zepeda filed timely objections to both medical panel
reports. Relevant to our review, Zepeda argued that the panel’s
findings could not “overturn[]” Reliable’s acceptance of liability
for certain conditions diagnosed during the First Action. He
further asserted that there was “no dispute that the chronic pain
behavior the [panel] identified [was] the result of the industrial
accident.” Therefore, Zepeda contended, the panel had rendered
a “medical opinion” that he was suffering from an “untreated
chronic pain condition as a result of the accident,” and he was
“entitled to accrued and ongoing temporary total disability
compensation” until that chronic pain condition stabilized.
¶11 The ALJ issued a final order adopting the medical panel’s
conclusions and denying temporary and permanent disability
benefits. The ALJ found that Zepeda had “reached medical
stability of his industrial injuries on August 31, 2015,” and
(…continued)
“pain behavior is exhibited out of proportion to the physiologic
or organic findings.”

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thereafter was “not entitled to temporary total disability
benefits.” The ALJ rejected Zepeda’s argument that he was
entitled to ongoing benefits for his “untreated, chronic pain
condition,” because the panel had found that the condition was
“not industrial-related” and that “no further care on an
industrial basis [was] medically necessary.” As to his permanent
total disability claim, the ALJ concluded that Zepeda could not
show five of the six elements required for an award of benefits.
See Provo City v. Labor Comm’n, 2015 UT 32, ¶ 6, 345 P.3d 1242
(citing Utah Code section 34A-2-413(1)(b)–(c) and listing the six
elements required to successfully bring a claim for permanent
total disability compensation).
¶12 Zepeda sought review by the Commission. Relevant to
our review, Zepeda raised three principal arguments. First,
Zepeda argued the medical panel and ALJ had ignored the
diagnosis he received as part of the First Action and that
Reliable’s admission of liability in the First Action had become
“the law of the case.” Second, Zepeda argued that the ALJ had
erred in finding that the chronic pain behavior was not work-
related and, because the psychiatric condition had not reached
medical stability, he was entitled to ongoing temporary total
disability benefits. Third, with respect to his permanent total
disability claim, Zepeda disagreed with the ALJ’s conclusions on
each of the required elements.
¶13 The Commission largely affirmed the ALJ’s order. Its
decision characterized Zepeda’s law of the case argument as
contending that the doctrine precluded adoption of the medical
panel’s findings “because Reliable [had] stipulated to liability for
permanent partial disability benefits in [the First Action].” But
the Commission was “not convinced that the law of the case
doctrine applie[d] to Mr. Zepeda’s present claim” because
the First Action “was withdrawn as part of settlement
negotiations . . . before it could be adjudicated.” Although the
parties had stipulated that Reliable and its insurer were

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“accept[ing] liability” for Zepeda’s claim in the First Action, the
“stipulation did not outline any specifics of such liability.”
¶14 The Commission also affirmed the ALJ’s ruling denying
temporary and permanent total disability benefits, but modified
the decision in one respect. Contrary to the ALJ’s finding, the
Commission concluded “that the medical panel’s
recommendation of FABT to treat Mr. Zepeda’s pain-avoidance
condition [was] appropriate and necessary as a result of the 2014
work accident,” and therefore compensable. Specifically, the
Commission recognized the appropriateness of Zepeda
undergoing FABT based on the panel’s conclusion that the
chronic pain behavior “resulted from the accident” and
explained why he had “continued symptoms and complaints
affecting his right-shoulder area despite lack of a physiological
cause.” The Commission therefore awarded Zepeda the costs of
undergoing FABT, but otherwise affirmed the denial of benefits.
¶15 Zepeda filed a request for reconsideration in which he
raised, for the first time, an objection to the medical panel’s
report based on the panel members’ qualifications. Zepeda also
argued that he was entitled to temporary total disability benefits
because the Commission had found that his need for FABT was
“related” to the accident and he had not yet reached maximum
medical improvement with respect to the chronic pain condition.
¶16 In ruling on the request to reconsider, the Commission
first rejected Zepeda’s objection to the medical panel’s
qualifications without addressing the merits. The Commission
ruled that Zepeda had “waive[d] . . . any objection regarding the
panel’s qualifications” by failing to raise this argument at an
appropriate stage of the proceedings.
¶17 The Commission also rejected Zepeda’s renewed
argument for temporary total disability benefits based on the
need to undergo FABT. It reiterated that Zepeda’s “work injury
[had] not prevent[ed] him from continuing to work as a

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mechanic as the panel determined he had no functional
limitations due to the work accident.” The Commission
explained that its decision to award Zepeda the costs of FABT to
improve his “functional ability” did
not equate to a finding of medical instability.
Although the panel recommended [FABT] to
address Mr. Zepeda’s pain behavior because it was
out of proportion to his physiologic findings, there
was nothing in the record to suggest that he was
medically unstable from his work injury—or
otherwise unable to work—while undergoing such
therapy. Indeed, the record shows and the panel
found it significant that Mr. Zepeda continued to
work for months after the accident until his
employment was terminated.
The Commission then reaffirmed its prior decision.
ISSUES AND STANDARDS OF REVIEW
¶18 Zepeda petitioned for judicial review and presents us
with four issues to consider. He first asserts that the Commission
erred by determining that the law of the case doctrine does not
apply to this action. “The application of the law of the case
doctrine is ordinarily reviewed under an abuse of discretion
standard.” McLaughlin v. Schenk, 2013 UT 20, ¶ 19, 299 P.3d 1139
(cleaned up). “However, when a legal question is presented to
an appellate court in law-of-the-case packaging, the abuse of
discretion standard must yield to the correctness standard of
review.” Id. (cleaned up).
¶19 Second, Zepeda argues that the Commission erred by
refusing to consider the merits of his objection to the medical
panel’s qualifications after it determined that he had waived the
argument by not raising it until he sought reconsideration of the

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Commission’s order. “The standard of review for an agency’s
application and interpretation of its own rules is abuse of
discretion.” Wallace v. Labor Comm’n, 2019 UT App 121, ¶ 7, 449
P.3d 218.
¶20 Third, Zepeda challenges the Commission’s decision to
deny him temporary total disability benefits based on its finding
that he became medically stable no later than August 31, 2015.
We will disturb the Commission’s finding on medical stability
only if it is “not supported by substantial evidence when viewed
in light of the whole record.” Waste Mgmt. and Indem. Ins. of N.
Am. v. Labor Comm’n, 2012 UT App 339, ¶ 5, 293 P.3d 384
(cleaned up).
¶21 Fourth, Zepeda challenges the Commission’s decision to
deny him permanent total disability benefits. We review the
Commission’s factual determinations with respect to a
permanent total disability claim “under the substantial evidence
standard of review, examining the whole record to determine
whether a reasonable mind might accept as adequate the
evidence supporting the decision.” See Oliver v. Labor Comm'n,
2017 UT 39, ¶ 13, 424 P.3d 22 (cleaned up). See generally Provo
City v. Labor Comm’n, 2015 UT 32, ¶¶ 8–22, 345 P.3d 1242
(discussing the various appellate standards of review that can
apply in a permanent total disability case depending on which
element the court is analyzing).
ANALYSIS
I. Effect of the First Action on this Proceeding
¶22 Zepeda first argues that the Commission erred in
concluding that the outcome of the First Action had no legal
effect on the issues contested in the present action. Specifically,
Zepeda contends that, because the First Action was dismissed
after Reliable accepted liability for paying permanent partial

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disability benefits, Reliable is precluded from “relitigating
whether the injuries identified in that claim occurred and are
related to the industrial accident.” In his opening brief, Zepeda
frames this issue as implicating res judicata principles. But as
Reliable points out, Zepeda did not make any res judicata-based
argument before the Commission; instead he argued that the law
of the case doctrine meant that the Commission was constrained
by the parties’ stipulated dismissal of the First Action.
¶23 Although courts have “sometimes used the terminology
of res judicata, . . . and the terminology of law of the case
doctrine interchangeably,” the two are “distinct doctrines”
with differing “elements and effects.” IHC Health Services, Inc. v.
D & K Mgmt., Inc., 2008 UT 73, ¶ 26 n.20, 196 P.3d 588. “Under
the law of the case doctrine, a decision made on an issue during
one stage of a case is binding in successive stages of the same
litigation.” Id. ¶ 26 (cleaned up) (emphasis added). Res judicata
“acts much like” the law of the case, but it “is more
appropriately used to describe the binding effect of a decision in
a prior case on a second case.” Id. ¶ 26 & n.20 (emphasis added).
Res judicata includes both issue and claim preclusion, both of
which apply only if the first action “resulted in a final judgment
on the merits.” Snyder v. Murray City Corp., 2003 UT 13, ¶¶ 33–
35, 73 P.3d 325 (cleaned up).
¶24 Zepeda suggests that it is not clear whether the law of the
case doctrine or res judicata applies in this context because the
Commission retains “continuing jurisdiction over workers’
compensation claims” and may consider “multiple cases filed
over the years dealing with the consequences of the same
industrial accident.” He therefore contends that “the analysis is
substantially the same” under either doctrine because the
application of either framework would “bar re-litigation of
issues that were addressed in” the First Action “involv[ing] the
same industrial accident.” According to Zepeda, “Whether

Zepeda v. Labor Commission
20190938-CA 12 2021 UT App 140
analyzed under the law of the case doctrine, or either of the
branches of res judicata, the result is the same.”
¶25 We agree that the result is the same, but it is not the result
Zepeda wants.6 Under either doctrine, the outcome of the First
Action has no bearing on this case because that action resulted in
a stipulated dismissal without prejudice. The Commission
therefore never decided whether the injuries identified in
Zepeda’s permanent partial disability claim had been caused by
the industrial accident or were otherwise compensable. Nor did
it adopt any stipulation to that effect by the parties. Indeed, as
the Commission noted, the stipulation that Reliable had accepted
liability for Zepeda’s claims in the First Action “did not outline
any specifics of such liability.” The Commission thus made no
decision on liability that could be binding in subsequent stages
of the same proceeding under the law of the case doctrine. See
IHC Health, 2008 UT 73, ¶ 26; cf. Helf v. Chevron U.S.A., Inc., 2015
UT 81, ¶ 65, 361 P.3d 63 (noting that, for the “law of the case
doctrine to apply at all, [a] court must have actually decided the
issue in a prior opinion”). And similarly, because the First
Action did not result “in a final judgment on the merits,” see
Snyder, 2003 UT 13, ¶¶ 33–35, neither branch of res judicata
applies. Therefore, regardless of how the issue is framed, the
6. Reliable persuasively argues that Zepeda has not preserved
his res judicata argument because he relied entirely on the
conceptually distinct law of the case doctrine before the
Commission. But because Zepeda’s arguments under both
doctrines fail for similar reasons, we elect to dispose of them on
the merits because we can easily do so in Reliable’s favor. See
State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (“If the merits
of a claim can easily be resolved in favor of the party asserting
that the claim was not preserved, we readily may opt to do so
without addressing preservation.” (cleaned up)).

Zepeda v. Labor Commission
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stipulated dismissal of the First Action had no preclusive effect
on the present case.
II. Untimely Objection to the Medical Panel
¶26 Zepeda next argues that the Commission abused its
discretion in refusing to consider his objections to the medical
panel’s qualifications. Zepeda did not object to either member’s
qualifications when the panel was appointed. Nor did he
challenge the panel’s qualifications in either of his objections to
the panel’s reports. Even when seeking Commission review of
the ALJ’s decision, he did not raise the issue. Instead, he waited
to voice any objection to the panel’s qualifications until he filed a
request for reconsideration with the Commission. Because
Zepeda had “failed to raise such issue prior to [that] late stage of
proceedings,” the Commission considered “such inaction to be a
waiver of any objection regarding the panel’s qualifications” and
refused to consider the objection on the merits.
¶27 Zepeda asks that we remand the case to the Commission
to address his objection on the merits because the Commission
did not cite to “any authority to support its determination that
an objection to the medical panel’s qualifications and expertise
raised in a Request for Reconsideration at the administrative
level are waived.”7 The time for filing objections to a medical
7. We note that Zepeda has not asked us to review the
underlying—and unpreserved—issue of whether the medical
panel members were qualified. Cf. State v. Pinder, 2005 UT 15,
¶ 46, 114 P.3d 551 (“If the trial court refuses to address the merits
of the newly advanced argument, the issue remains unpreserved
for appellate review and may be addressed only if the
challenging party can show [an exception to preservation].”); see
also State v. Johnson, 2017 UT 76, ¶¶ 18–39, 416 P.3d 443 (listing
the exceptions to the preservation rule and their requirements).

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panel’s report is governed by statute: any objection to a
medical panel report must be filed within twenty days. Utah
Code Ann. § 34A-2-601(2)(d)(ii) (LexisNexis 2019); see also Utah
Admin. Code R602-2-2(B)(1) (2020) (“A written Objection to a
medical panel report shall be due within 20 days of the date the
medical panel report is served on the parties.”). “If no written
objection is filed within the period described in Subsection
(2)(d)(ii), the report is considered admitted in evidence.” Utah
Code Ann. § 34A-2-601(2)(d)(iii).
¶28 Although Zepeda timely filed two objections to the
medical panel’s reports, neither raised any concern regarding the
qualifications of either member of the medical panel. Because
that concern was raised well beyond the twenty-day deadline,
the Commission was under no obligation to consider it. Cf. State
v. Pinder, 2005 UT 15, ¶ 46, 114 P.3d 551 (“Although a new
argument may be advanced when [a litigant moves] for a new
trial, the trial court may refuse to consider the merits of the
argument because it may find the issue waived.” (cleaned up)).
¶29 Zepeda nevertheless points out that, in other cases, the
Commission has exercised its discretion to entertain an untimely
objection to the medical panel’s qualifications brought for the
first time in a motion for reconsideration. We assume, without
deciding, that the Commission has the discretion to do so. The
legislature has granted the Commission “continuing
jurisdiction,” which “encompasses” the broad authority and
“wide discretion” to correct errors and avoid either “excessive or
inadequate awards.” See Frito-Lay v. Labor Comm’n, 2009 UT 71,
¶ 25, 222 P.3d 55 (cleaned up). If the Commission had exercised
that authority in this instance and reached the merits of Zepeda’s
untimely objection, then that issue would have been preserved
for judicial review. Cf. Burdick v. Horner Townsend & Kent, Inc.,
2015 UT 8, ¶ 50, 345 P.3d 531 (holding that “if a trial court
decides, in its discretion, to address the merits of a claim raised
for the first time in a motion to reconsider, that claim is

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preserved”). But it did not. And Zepeda has not attempted to
show good cause for failing to raise the issue earlier, nor has he
demonstrated any other reason why the Commission’s refusal to
reach the merits amounted to an abuse of discretion. See Wright
v. Labor Comm'n, 2021 UT App 43, ¶ 16, 489 P.3d 211 (refusing to
address the argument that the medical panel had a conflict of
interest where petitioner “did not raise this issue with the
Commission until his second motion for reconsideration, and the
Commission rejected his argument without reaching the merits,
finding that it was untimely and improperly raised”), cert.
granted, 496 P.3d 711 (Utah 2021). Therefore, we decline to
disturb the Commission’s decision not to consider Zepeda’s
belated objection.
III. Temporary Total Disability
¶30 Zepeda next challenges the Commission’s decision to
deny his claim for temporary total disability benefits. Without
citation to legal authority, he claims “he is entitled to an award
of temporary total disability related to his chronic pain behavior
until such a condition is found to be stable.”
¶31 “Temporary total disability benefits are typically awarded
after a worker suffers a job-related disability that prevents him
or her from returning to work.” Booms v. Rapp Constr. Co., 720
P.2d 1363, 1366 (Utah 1986). Unlike permanent total disability
compensation, “[t]emporary disability compensation is intended
to be just that, temporary. It merely provides an employee with
income [while recuperating] from work-related injuries until
[the] condition has reached medical stabilization.” Griffith v.
Industrial Comm’n, 754 P.2d 981, 983 (Utah 1988). A claimant
reaches stabilization when “the period of healing has ended and
the condition of the claimant will not materially improve.” Id.
(cleaned up). Once a worker reaches medical stabilization, “the
permanent nature of the claimant’s disability can be assessed
and benefits awarded accordingly.” Greyhound Lines, Inc. v.

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Wallace, 728 P.2d 1021, 1022 (Utah 1986). At that point, “the
claimant is moved from temporary to permanent status and he is
no longer eligible for temporary benefits.” Id.
¶32 A finding that the claimant’s condition has stabilized is “a
factual question to be determined by medical evidence contained
in the record.” Griffith, 754 P.2d at 983–84; accord Waste Mgmt.
and Indem. Ins. of N. Am. v. Labor Comm’n, 2012 UT App 339, ¶ 5,
293 P.3d 384. We will disturb the Commission’s stabilization
finding only if “it is not supported by substantial evidence when
viewed in light of the whole record.” Waste Mgmt., 2012 UT App
339, ¶ 5. An agency “decision meets the substantial evidence test
when a reasonable mind might accept as adequate the evidence
supporting the decision,” “even if another conclusion from the
evidence is permissible.” Watson v. Labor Comm’n, 2020 UT App
170, ¶ 16, 480 P.3d 353 (cleaned up).
¶33 In ruling that Zepeda was not entitled to ongoing
temporary total disability benefits, the Commission adopted the
medical panel’s finding that Zepeda’s condition had long since
stabilized. The panel determined that Zepeda’s work accident
had resulted in only soft tissue injuries that normally resolve
“within a few days to a few months” and relied on the
assessment of Zepeda’s chiropractor in concluding that Zepeda
had reached medical stability from those work-related injuries
no later than August 31, 2015. The Commission’s stabilization
finding is based on the medical panel’s reports, which
themselves constitute substantial evidence to support such
findings. See Benson v. Labor Comm’n, 2018 UT App 228, ¶ 8, 437
P.3d 1253 (per curiam) (noting that a medical panel’s report
alone may provide substantial evidence to support the
Commission’s factual findings).
¶34 Yet Zepeda argues that even if he is stable with respect to
his physical injuries, his chronic pain behavior “is not stable, and
the condition prevents him from doing the job he was doing at

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the time of his accident.” In support, Zepeda contends that the
medical panel found he could perform only light or sedentary
work, as opposed to the work required of an auto mechanic,
which falls within the “medium work classification.” But the
panel did not offer an opinion on whether Zepeda was capable
of more than light work. The panel explained that it could not
make that determination without a formal functional capacity
evaluation (FCE) and no such assessment was conducted
because the panel believed that Zepeda “would unlikely be
willing to provide full effort on an FCE,” given his “clinical
presentation at [the panel] evaluation compared with video
surveillance.” As a result, the panel concluded that it could not
reliably evaluate Zepeda’s ability to lift, push, or pull. In all
other functional areas, however, the panel found that Zepeda
had no limitations.
¶35 The Commission rejected Zepeda’s position that the
panel’s description of his ability to perform light or sedentary
work was “an indication that he can no longer perform the
essential functions of the work for which he was qualified at the
time of the accident.” Instead, the Commission read the relevant
portion of the report as reflecting the panel’s view that Zepeda
would be unwilling to do more than light or sedentary tasks or
“to provide full effort with his right arm” during an FCE.
Pointing to the panel’s more definitive findings, the Commission
concluded that the “work injury did not prevent [Zepeda] from
continuing to work as a mechanic” because “the panel
determined that he had no functional limitations due to the work
accident,” he had not been required to miss work, and he had
continued to work for Reliable for two months after the accident,
albeit with some restrictions. As the Commission explained, the
potential “improvement of Mr. Zepeda’s functional ability
through FABT does not equate to a finding of medical
instability.” Although it found that FABT was “appropriate and
necessary as a result of the 2014 work accident,” “there was
nothing in the record to suggest that [Zepeda] was medically

Zepeda v. Labor Commission
20190938-CA 18 2021 UT App 140
unstable [because of] his work injury—or [would be] otherwise
unable to work—while undergoing such therapy.”
¶36 “Temporary disability benefits are intended to
compensate a worker during the period of healing and until [the
worker] is able to return to work.” Booms, 720 P.2d at 1366
(cleaned up). Substantial evidence supports the Commission’s
finding that Zepeda’s pain condition does not prevent him from
returning to work. Therefore, we decline to disturb its
determination that Zepeda is not entitled to temporary total
disability benefits while undergoing FABT.
IV. Permanent Total Disability
¶37 Lastly, Zepeda argues that, even if the Commission
correctly determined that he was medically stable and thus no
longer entitled to temporary benefits, it erred in failing to award
him permanent total disability benefits. To qualify for
permanent total disability benefits, an employee must establish
six elements:
(1) “the employee sustained a significant
impairment” as a result of the work-related injury,
(2) “the employee is not gainfully employed,”
(3) “the employee has an impairment or
combination of impairments that limit the
employee’s ability to do basic work activities,”
(4) the impairment or impairments “prevent the
employee from performing the essential functions
of the work for which the employee has been
qualified” until the time of the accident, (5) “the
employee cannot perform other work reasonably
available,” and (6) “the industrial accident or
occupational disease is the direct cause of the
employee’s permanent total disability.”

Zepeda v. Labor Commission
20190938-CA 19 2021 UT App 140
Oliver v. Labor Comm'n, 2017 UT 39, ¶ 15, 424 P.3d 22 (quoting
Utah Code Ann. § 34A-2-413(1)(b)–(c)). If the “Commission finds
that an employee has failed to prove any one of these elements
by a preponderance of the evidence, it must deny permanent
total disability benefits.” Id. ¶ 17.
¶38 Here, the Commission found that Zepeda had proven the
second element (that he was not gainfully employed), but had
not proven any of the remaining elements. Failure to satisfy any
one element is fatal to Zepeda’s claim. See Watson v. Labor
Comm’n, 2020 UT App 170, ¶ 20, 480 P.3d 353 (“Because we
agree with the Commission that [the employee] failed to meet
the fourth element, which is fatal to her claim, we limit our
analysis to that element.”). Because the record most readily
supports the Commission’s finding that Zepeda failed to prove
that he is limited in performing “basic work activities,” we limit
our analysis to the third element. See id.
¶39 Zepeda contends he has satisfied the third element
because his condition has “restricted significantly his ability to
lift, carry, and exert force” and those “are the main basic work
activities” required for “the manual labor that Zepeda has
performed in his life.” But unlike the fourth and fifth elements,
which require proof that an employee cannot perform the
essential functions of a particular job or other work reasonably
available, “the basic work activities element asks whether,
irrespective of specific employment prospects, the employee
retains the core functionality necessary to meaningfully
participate in the workforce.” Oliver, 2017 UT 39, ¶ 16. An
employee cannot satisfy this element “by adducing proof of any
limitation on their ability to work, no matter how slight.” Id.
¶ 22. Instead, “whether an employee is ‘limited’ in [the] ability to
perform basic work activities depends on whether,
notwithstanding [the] impairments, [the employee] is
meaningfully able to perform the core tasks that are basic
prerequisites to employment.” Id. ¶ 24.

Zepeda v. Labor Commission
20190938-CA 20 2021 UT App 140
¶40 Based on the medical panel reports, the Commission
concluded that Zepeda “does not have functional limitations on
his ability to perform such activities.” The panel concluded that
Zepeda had no physical limitations whatsoever with respect to
basic work activities such as sitting, standing, walking, stooping,
twisting, and grasping. Although the medical panel could not
reliably assess the limits of Zepeda’s ability to lift, push, or pull,
it offered its “best clinical judgment based off the mechanism of
injury, medical records, video surveillance, physical exam and
history” that Zepeda “could perform sedentary and light work
as defined by the US Department of Labor.” Even viewing this
finding in the light most favorable to Zepeda, it does not
establish that he is unable “to perform most jobs, including more
sedentary lines of work,” which he is required to show under the
third element. See id. ¶ 23 (cleaned up).
¶41 In sum, substantial evidence supports the Commission’s
conclusion that Zepeda has not proven an impairment that limits
his ability to perform basic work activities. Thus, because
Zepeda cannot prove every element required for an award of
permanent total disability benefits, we decline to disturb the
Commission’s decision denying his claim for those benefits.
CONCLUSION
¶42 We reject each of Zepeda’s challenges to the
Commission’s decision. The Commission correctly determined
that the stipulated dismissal of Zepeda’s First Action had no
preclusive effect on this case and acted within its discretion in
refusing to entertain an untimely objection to the medical panel’s
qualifications. And because substantial evidence supports the
denial of both temporary and permanent total disability benefits,
we decline to disturb the Commission’s decision.