Velasco v. Labor Commission

2021 UT App 1

THE UTAH COURT OF APPEALS

ISRAEL VELASCO,
Petitioner,
v.
LABOR COMMISSION, RESPONSE TEAM 1 LLC, AND
ZURICH AMERICAN INSURANCE COMPANY,
Respondents.

Opinion
No. 20191003-CA
Filed January 7, 2021

Original Proceeding in this Court

Jared L. Mortenson, Attorney for Petitioner
Bret A. Gardner and Dori K. Petersen, Attorneys for
Respondents Response Team 1 LLC and Zurich
American Insurance Company
Christopher C. Hill, Attorney for Respondent
Labor Commission

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and DIANA HAGEN
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Israel Velasco seeks review of the Labor Commission
Appeals Board’s (the Board) decision denying him a portion of
his claimed temporary total disability benefits. We set aside the
Board’s decision and remand for further proceedings.
Velasco v. Labor Commission

BACKGROUND 1

¶2 While working for Response Team 1 LLC (Response
Team) doing “restoration, carpet cleaning, and emergency flood
work,” Velasco suffered a serious laceration to his right index
finger and hand on July 20, 2018. Response Team accepted
liability for Velasco’s injury.

¶3 Between the time of the accident and October 12, 2018,
Velasco received treatment for his injury, including surgery on
July 31 and a steroid injection on September 21. Velasco’s doctor,
Dr. Burrows, restricted him to light-duty work throughout this
period, instructing him not to use his right hand. During this
period, Response Team provided light-duty work for Velasco.

¶4 On October 12, 2018, Velasco attended a follow-up
appointment with Dr. Burrows. After examining Velasco, Dr.
Burrows reported that Velasco had experienced “significant
improvement” after receiving the prior injection but was still
having some pain. Dr. Burrows administered another injection
and prescribed naproxen for pain. He again stated that Velasco
should continue with light-duty work “at this stage” with “no
use [of] the right hand” but that Velasco would be “released to
full unrestricted work activities on 15 October.”

¶5 At the October 12 appointment, Velasco attempted to
schedule a follow-up appointment but was told that his medical
bills had not been paid and that Dr. Burrows would not see him
again unless he agreed to sign a form accepting financial
responsibility for the bills. Velasco did not sign the form and did
not see Dr. Burrows again “because he could not afford to pay
the associated costs out-of-pocket.”

1. We recite the facts as found by the Board, including findings
by the administrative law judge, which the Board adopted. The
factual findings are not in dispute.

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¶6 “Following the [October 12] appointment, [Velasco’s]
right index finger pain increased and his ability to use the finger
decreased.” Nevertheless, on October 15, Velasco returned to
full-duty work at Response Team, consistent with Dr. Burrows’s
recommendation. Velasco tried to resolve the billing issue with
Response Team and its insurer. Response Team assured him
“that the bills had been submitted for payment and that
everything should be taken care of,” but when Velasco tried to
contact the insurer, his messages were not returned. Velasco
became “[f]rustrated with the way he was being treated,” so he
started looking for other employment and hired a lawyer to help
him with his claim.

¶7 On October 26, Velasco quit his job with Response Team.
Velasco started working with a temporary employment agency
on October 28. He “found temporary construction work that
proved too painful with his right-hand condition and later
accepted cleaning jobs he could perform with primarily one
hand.” “On March 18, 2019, Mr. Velasco began working in a
restaurant, but the continued pain in his right hand interfered
with his ability to perform all his duties. Mr. Velasco’s last day of
work at the restaurant was April 14, 2019 . . . .”

¶8 On March 25, 2019, Velasco received an evaluation by a
new doctor, Dr. Warren. Dr. Warren recommended that
Velasco’s finger be amputated and opined that he could not
work. He was evaluated by a surgeon, Dr. Wang, on April 9,
“who noted that [Velasco] had experienced right index finger
pain for the past nine months.” Dr. Wang performed surgery to
amputate Velasco’s finger on May 2, and Velasco was released
for full-duty work on May 28.

¶9 Velasco requested temporary disability compensation
from July 20, 2018, through May 28, 2019. Following a hearing,
an administrative law judge (ALJ) awarded these benefits.
Response Team filed a motion for review asking the Board to
modify the ALJ’s decision, asserting that Velasco could not
receive temporary compensation during the period from

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October 15, 2018, when Dr. Burrows released him for full-duty
work, and March 24, 2019, the day before Dr. Warren
determined that he could not work.

¶10 The Board agreed with Response Team, concluding that
“Velasco is not eligible for temporary disability benefits for the
period of October 15, 2018, to March 24, 2019.” The Board
explained that “Dr. Burrows’s opinion releasing Mr. Velasco to
return to work without restrictions” along with “[t]he fact that
Mr. Velasco returned to work for Response [Team] around the
same time as his last treatment from Dr. Burrows” “is evidence
that he could perform the duties of the character required in his
occupation prior to his injury.” The Board further explained that
it did not view Velasco’s own testimony of his limitations “as a
competent evaluation of his physical condition sufficient to
demonstrate total disability.” Accordingly, the Board set aside
the ALJ’s decision as to temporary benefits between October 15,
2018, and March 24, 2019.

¶11 Velasco moved the Board to reconsider its decision, and
the Board denied Velasco’s request, explaining that if Velasco
“believed he was truly unable to work after” obtaining the
medical release from Dr. Burrows, he “must demonstrate such
inability through competent and appropriate medical
evidence.” 2

2. It is unclear to us why the Board believed that the evaluations
of Dr. Warren and Dr. Wang could not provide competent
evidence regarding Velasco’s condition prior to the time of the
initial March 25 appointment with Dr. Warren. Both doctors
observed that Velasco’s pain had been ongoing for some time,
and their recommended treatment of amputation certainly
suggests that Velasco’s condition had worsened since his last
appointment with Dr. Burrows. Moreover, since both doctors
opined that Velasco should not be working in his condition, it
would be reasonable to infer that Velasco’s inability to work
(continued…)

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¶12 Velasco now asks us to set aside the Board’s decision as to
temporary disability benefits.

ISSUE AND STANDARD OF REVIEW

¶13 Velasco asserts that the Board erred in denying him
benefits because it erroneously relied solely on
contemporaneous medical records to assess his temporary
disability. 3 “Whether the [Board] correctly or incorrectly denied
benefits is a traditional mixed question of law and fact.” Jex v.
Utah Labor Comm’n, 2013 UT 40, ¶ 15, 306 P.3d 799 (quotation
simplified). “The level of deference to be granted such a decision
depends on whether the question presented is more fact-like or
more law-like.” Nielsen v. Labor Comm’n, 2020 UT App 2, ¶ 9, 456
P.3d 1167.

(…continued)
began sometime prior to his first appointment with Dr. Warren.
To be sure, it would have been more helpful had either doctor
offered an opinion regarding whether Velasco would have been
able to work during the period of October 15 to March 24. But
the mere fact that Velasco did not meet with the doctors sooner
does not necessarily limit the relevance of the medical evidence
from Dr. Warren and Dr. Wang to the period after they
examined Velasco.

3. Velasco also raises questions regarding the fundamental
fairness of permitting Response Team and its insurer to avoid
paying him benefits where his inability to obtain a medical work
restriction prior to March 24 resulted from the insurer’s failure to
timely pay for his medical expenses. While we are troubled by
this situation and the potential it creates for insurers to avoid
payment by acting in bad faith, we need not analyze this
question in light of our determination that the Board’s findings
do not support its determination not to award benefits.

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¶14 Here, the factual findings are not in dispute. 4 Instead, the
question before us is whether the facts as found by the Board
entitle Velasco to temporary benefits between October 15, 2018,
and March 24, 2019. Where “the ultimate question is the legal
effect of the facts . . . rather than witness credibility or demeanor,
our review of the ultimate question is non-deferential.” JBS USA
v. Labor Comm’n, 2020 UT App 86, ¶ 8, 467 P.3d 905 (quotation
simplified); see also Murray v. Utah Labor Comm’n, 2013 UT 38,
¶ 40, 308 P.3d 461.

ANALYSIS

¶15 “A [worker] may be found totally disabled if by reason of
the disability resulting from [their] injury, [they] cannot perform
work of the general character [they were] performing when
injured, or any other work which a [person] of [their] capabilities
may be able to do or learn to do.” Entwistle Co. v. Wilkins, 626
P.2d 495, 497–98 (Utah 1981) (quotation simplified).

¶16 The Board made the following findings relating to
Velasco’s ability to work between October 18 and March 24: (1)
Dr. Burrows released Velasco to “full unrestricted work
activities on 15 October”; (2) at some point “[f]ollowing the
[October 12] appointment” Velasco’s “right index finger pain
increased and his ability to use the finger decreased”; (3) after
Dr. Burrows’s medical release, Velasco returned to full-duty
work at Response Team until October 26; (4) the reason for
Velasco’s decision to stop working for Response Team was his
“frustration with how Response [Team] was handling the

4. Response Team frames this issue as a question of fact and
urges us to defer to the Board’s “findings.” But Velasco does not
appear to have contested any of the Board’s findings. Rather, he
disputes the Board’s conclusion that it could not rely on non-
medical evidence to support a determination that Velasco was
disabled.

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medical coverage for his work injury”; (5) Velasco started
working with a temporary employment agency on October 28;
(6) Velasco “found temporary construction work that proved too
painful with his right-hand condition and later accepted
cleaning jobs he could perform with primarily one hand”; (7) on
March 18, “Velasco began working in a restaurant, but the
continued pain in his right hand interfered with his ability to
perform all his duties” and his “last day of work at the
restaurant was April 14, 2019”; (8) on March 25, Dr. Warren
reported that “Velasco’s work injury resulted in chronic pain,
deformity, and loss of use of his right index finger” severe
enough to require amputation; and (9) Dr. Wang noted that
Velasco “had experienced right index finger pain for the past
nine months,” diagnosed him with “probable neuroma and
stiffness,” and performed surgery to amputate his finger.

¶17 These findings do not support a legal determination that
Velasco could “perform work of the general character he was
performing when injured, or any other work which a [person] of
his capabilities may be able to do or learn to do” during the
entire period from October 15 through March 24. See Entwistle,
626 P.2d at 497–98 (quotation simplified). The Board’s findings
that Dr. Burrows released Velasco for full-duty work on October
15 and that Velasco, in fact, returned to full-duty work support a
determination that he was not temporarily disabled as of
October 15 and for some period thereafter. 5 However, the

5. While Dr. Burrows’s release was prospective in nature—based
on his assumption that the treatment provided on October 12
would allow Velasco to return to work—we cannot agree with
Velasco that the prospective nature of the release prevented the
Board from relying on it to determine that he was, in fact, able to
perform his regular work at Response Team as of that date.
Although Velasco asserts that his finger was “so painful and
numb” that he “couldn’t really use it,” that he “could barely
write,” and that he “couldn’t cut with his right hand” during the
period between October 15 and October 26 when he was
(continued…)

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Board’s findings that construction and restaurant work were too
painful for Velasco to perform 6 and that he had to seek one-
handed work demonstrate that at some point after October 15,
but before Velasco saw Dr. Warren, his ability to work
diminished to an extent that he was again temporarily disabled.
Moreover, the Board’s findings regarding both Dr. Warren’s and
Dr. Wang’s diagnoses and notes demonstrate that Velasco was

(…continued)
working for Response Team at full duty, neither the ALJ nor the
Board made any findings regarding Velasco’s condition during
this period or found that he left his job with Response Team as a
result of pain or inability to perform his work. Rather, both
found that the reason Velasco left his employment with
Response Team was his frustration with the delays in payments
to his medical providers and lack of communication about his
workers’ compensation claim, and Velasco has not challenged
these findings. The ALJ did find that “[f]ollowing the [October
12] appointment, [Velasco’s] right index finger pain increased
and his ability to use the finger decreased.” However, the ALJ
was silent as to whether or how this interfered with Velasco’s
ability to work for Response Team between October 15 and
October 26.

6. Response Team asserts that the fact that Velasco continued to
work during the claimed period of disability demonstrates that
he was not disabled. However, “[t]he fact that an injured
employee may be able to do some kinds of tasks to earn
occasional wages does not necessarily preclude a finding of total
disability to perform the work or follow the occupation in which
[they were] injured.” Entwistle Co. v. Wilkins, 626 P.2d 495, 498
(Utah 1981) (quotation simplified). Rather, the question is
whether the employee can “perform the duties of the character
required in [their] occupation prior to [the] injury.” Id. Here, the
Board explicitly found that Velasco’s impairments made it too
painful for him to work except in “jobs he could perform with
primarily one hand.”

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disabled for at least some portion of the period between October
15 and March 24. Both doctors agreed that Velasco should
immediately stop working. Dr. Warren described Velasco’s pain
as “chronic,” and Dr. Wang stated that Velasco had experienced
pain for the last nine months. Further, the fact that Dr. Warren
recommended amputation by the time of the March 25
appointment, a drastic treatment not contemplated at the time of
the October 12 appointment with Dr. Burrows, demonstrates
that Velasco’s condition had seriously deteriorated during the
period for which the Board denied benefits.

¶18 Despite its findings, the Board concluded that it did not
consider Velasco’s testimony regarding whether he could
perform certain work activities “as a competent evaluation of his
physical condition sufficient to demonstrate total disability.”
Although it is the Board’s prerogative to weigh the evidence, “it
would be unjust and impermissible for the [Board] to obdurately
ignore clear, credible and uncontradicted evidence so that its
action is arbitrary and unreasonable.” Shipley v. C & W
Contracting Co., 528 P.2d 153, 154–55 (Utah 1974) (recognizing the
value of lay testimony regarding a claimant’s employability,
though ultimately upholding the Industrial Commission’s
impairment rating in light of other evidence supporting its
decision). Essentially, despite substantial, uncontroverted
evidence that Velasco’s condition deteriorated to a degree that
prevented him from working well before he received an official
work restriction from Dr. Warren and required him to have his
injured finger amputated—and despite making factual findings
to that effect—the Board concluded that nothing short of a
contemporaneous work restriction could overcome Dr.
Burrows’s October 15 release to full-duty work. Where it is
objectively clear that Velasco’s disability arose well before he
met with Dr. Warren, we would be perpetuating a legal fiction to
accept the Board’s determination that the disability did not begin
until Dr. Warren identified it.

¶19 The Board’s elevation of contemporaneous medical
evidence to the exclusion of all other evidence is inconsistent

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with our jurisprudence and also objectively unreasonable. See id.
After all, much of medical diagnosis is dependent on an injured
person’s own subjective reports of their pain and impairment.
See, e.g., Entwistle, 626 P.2d at 497–98 (relying on a medical
panel’s opinion, which assessed the claimant’s alleged
temporary disability after the fact). Although a lack of
contemporaneous medical evidence could certainly undermine a
claim for temporary benefits, it cannot foreclose such a claim
where other evidence supports a determination that the claimant
could no longer perform their normal work duties.

¶20 Here, the Board explicitly found that Velasco’s injury
made it “too painful” for him to do construction work and
“interfered with his ability to perform all his duties” as a
restaurant manager. Because the test for temporary disability
considers whether the claimant can “perform work of the
general character [they were] performing when injured, or any
other work which a [person] of [their] capabilities may be able to
do or learn to do,” id., these findings establish that Velasco once
again became temporarily disabled at some point after Dr.
Burrows released him for full-duty work.

¶21 Neither the ALJ nor the Board made any findings
regarding the precise date following Dr. Burrows’s release that
Velasco’s pain began to interfere with his ability to work. We
know only that Velasco began working for a temporary
employment agency on October 28 and that at some point
thereafter, his pain prevented him from performing construction
work that the agency found for him. Thus, we must remand for
the Board to make a determination regarding the date after the
full-duty release when Velasco became temporarily disabled.

CONCLUSION

¶22 The Board’s findings demonstrate that Velasco became
temporarily disabled sometime after Dr. Burrows released him
for full-duty work but before he met with Dr. Warren. Thus, the

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Board erred in determining that Velasco could not obtain
temporary disability benefits for any of the period between
October 15 and March 24. Nevertheless, we cannot discern from
the Board’s findings the date when Velasco became unable to
perform his normal work duties. Thus, we remand for the Board
to make such a finding and to adjust Velasco’s award of
temporary benefits accordingly.

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