Mercado v. Labor Commission

2014 UT App 268
_________________________________________________________

THE UTAH COURT OF APPEALS

JUANA MERCADO,
Petitioner,
v.
LABOR COMMISSION, AUTOGRILL GROUP, AND HARTFORD
INSURANCE COMPANY OF THE MIDWEST,
Respondents.

Memorandum Decision
No. 20130859-CA
Filed November 14, 2014

Original Proceeding in this Court

Daniel F. Bertch and Kevin K. Robson, Attorneys
for Petitioner

Jaceson R. Maughan, Attorney for Respondent
Labor Commission

Theodore E. Kanell and Daniel E. Young,
Attorneys for Respondents Autogrill Group and
Hartford Insurance Company of the Midwest

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS and J. FREDERIC VOROS JR.
concurred.

ORME, Judge:

¶1 Juana Mercado seeks judicial review of the Utah Labor
Commission’s denial of permanent total disability benefits relating
to her 2011 industrial accident. We uphold the Commission’s
decision.
Mercado v. Labor Commission

¶2 Mercado, who according to her brief is illiterate and speaks
only Spanish, was born in Peru in 1938.1 In Peru, Mercado worked
as a fruit vendor for more than thirty-five years, “buying fruit from
a wholesaler and reselling it.” When she was fifty-eight years old,
Mercado immigrated to the United States. Mercado first worked as
a clerk for Deseret Industries, and then she packaged medicine for
a pharmaceutical manufacturer.

¶3 In March 2000, Mercado began working as a dishwasher for
an airport restaurant operated by Autogrill Group. Her duties
included scraping food off dishes, loading the dishes onto a
wheeled rack, and pushing the rack into the dishwashing machine.
Because Mercado was “fragile,” her co-workers routinely helped
her “lift things that were heavy,” like “equipment” and “parts.” In
May 2011, Mercado fell at work and broke her left arm. More
specifically, she was diagnosed with a “three-part fracture of the
left humerus as well as effusion and tendinopathy in her left
shoulder and diffuse osteopenia.” Mercado underwent surgery to
repair her arm in June 2011.2 About a month after her surgery,
Mercado’s doctor released her to light-duty work and she returned
to work wearing a sling on her left arm. By November 2011,
Mercado was performing her regular work duties, and in February
2012, her doctor confirmed that she was released to regular-duty
work. In his February 2012 assessment, Mercado’s doctor
“specifically noted that [she] was not required to do heavy lifting
in her position with Autogrill and . . . that she could continue
working there.” After Mercado returned to work, she was again
“accommodated by other employees lifting the heavy pots and
pans.”

1. “In reviewing the decision of the Commission, we view the facts
in the light most favorable to the Commission’s findings.” Swift
Transp. v. Labor Comm’n, 2014 UT App 104, ¶ 2 n.1, 326 P.3d 678.

2. Autogrill’s workers’ compensation carrier covered the cost of
Mercado’s surgery and related medical care as well as temporary
disability benefits during the period of her convalescence.

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Mercado v. Labor Commission

¶4 In May 2012, Autogrill closed its airport location because of
changes to the food services area of the airport. As a result,
Autogrill laid off all of its airport employees. At that time, the
airport’s Senior Food and Beverage Manager spoke with Mercado
individually about her re-employment with Autogrill because “she
was interested in [Mercado’s] well-being.” The manager provided
Mercado with a telephone number to call for updates about being
rehired after the airport changes were finished. In July 2012,
Mercado filed an application for permanent total disability benefits.

¶5 To establish entitlement to permanent total disability
benefits under the Workers’ Compensation Act, an employee must
demonstrate by a preponderance of the evidence that “(i) the
employee sustained a significant impairment or combination of
impairments as a result of the industrial accident . . . ; (ii) the
employee has a permanent, total disability; and (iii) the industrial
accident . . . is the direct cause of the employee’s permanent total
disability.” Utah Code Ann. § 34A-2-413(1)(b) (LexisNexis 2011). To
establish the existence of a total permanent disability under section
34A-2-413(1)(b)(ii), the employee must prove that

(i) the employee is not gainfully employed;
(ii) the employee has an impairment or combination
of impairments that limit the employee’s ability to do
basic work activities;
(iii) the industrial or occupationally caused
impairment or combination of impairments prevent
the employee from performing the essential
functions of the work activities for which the
employee has been qualified until the time of the
industrial accident . . . that is the basis for the
employee’s permanent total disability claim; and
(iv) the employee cannot perform other work
reasonably available, taking into consideration the
employee’s age, education, past work experience,
medical capacity, and residual functional capacity.

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Mercado v. Labor Commission

Id. § 34A-2-413(1)(c) (subsection (iv) reformatted for readability).

¶6 The Administrative Law Judge (the ALJ) denied Mercado’s
claim, finding that Mercado “failed to demonstrate that she has a
limited ability to do basic work activities and an inability to
perform former work” under subsections 34A-2-413(1)(c)(ii) and
(iii). Based on those findings, the ALJ also found that Mercado
failed to demonstrate that the Autogrill accident was the direct
cause of Mercado’s apparent unemployability or that the accident
resulted in her permanent total disability under subsection 34A-2-
413(1)(b)(iii). Mercado appealed to the Commission, which
affirmed the ALJ’s decision, concluding that Mercado had shown
that she “is limited in her ability to do basic work activities” but
that she failed to demonstrate both that her “left-arm injury
prevented her from performing the essential functions of her job”
and that her “work accident was the direct cause of her alleged
disability.”

¶7 In this judicial review proceeding, Mercado first argues that
the Commission erred by finding that her left-arm injury did not
prevent her “from performing the essential functions of the work
activities for which [she] has been qualified until the time of the
industrial accident.” See id. § 34A-2-413(1)(c)(iii). “[T]he question of
whether an employee can perform the ‘essential functions’ of prior
employment is a factual determination that should be overturned
. . . only if substantial evidence fails to support it.” Martinez v.
Media-Paymaster Plus, 2007 UT 42, ¶ 30, 164 P.3d 384. “Substantial
evidence exists when the factual findings support more than a mere
scintilla of evidence . . . though something less than the weight of
the evidence. An administrative law decision meets the substantial
evidence test when a reasonable mind might accept as adequate the
evidence supporting the decision.” Id. ¶ 35 (omission in original)
(citations and internal quotation marks omitted).

¶8 The Commission determined that Mercado was capable of
performing the essential functions of her position with Autogrill
once her broken arm had healed. Specifically, the Commission

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Mercado v. Labor Commission

found that Mercado’s primary duties as a dishwasher “entailed
scraping food off of dishes and loading the dishes onto a wheeled
rack that she pushed into a dishwashing machine.” The
Commission also considered reports from Mercado’s doctor, which
stated that Mercado was medically stable and able to return to her
regular work activities as of February 7, 2012. And she did, in fact,
return to her job with Autogrill and continued her employment
there for over three months before being laid off. Mercado’s doctor
specifically noted that Mercado’s position at Autogrill was “not a
very heavy work position, and thus she is able to continue in her
previous work position” with no restrictions. Based on Mercado’s
doctor’s note that Mercado was not required to do any heaving
lifting after her accident, the Commission found that “lifting pots
and pans was not truly an essential function of [Mercado’s] job if
Autogrill was content to assign such a task to other employees.”
Rather, Mercado “required a relatively minor adjustment to her
work—lifting pots and pans—while she successfully performed her
other duties.”

¶9 Mercado argues that the Commission’s “laser-like focus” on
her specific job duties at Autogrill misses the mark and that the
true question is whether she can “work at a general category or
class of jobs” for which she was previously qualified, i.e., as a
restaurant kitchen worker. Mercado contends that the
accommodations Autogrill provided to her demonstrate that she
was performing “a sliver of the regular job of dishwasher.”
Moreover, Mercado argues, “[t]he only kitchen dishwasher job in
Utah where [she] could work was at Autogrill, because of the
accommodations they gave her.” We are not convinced. While it is
unlikely that every restaurant in Utah would make
accommodations for Mercado, the propositions that no restaurant
in Utah would make similar accommodations and that all
dishwasher positions entail heavy lifting are not supported in the
record before us.

¶10 Most importantly, Mercado was no more limited in her
ability to perform her job functions after her accident than she was

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Mercado v. Labor Commission

before it. The manager testified that prior to Mercado’s accident,
she was already limited in her ability to lift heavy objects:

[S]he’s an elderly woman so she’s fragile . . . . We’d
help her . . . lift things that were heavy all the time.
Things that were above her head, like up on a high
shelf. Stainless steel, half-size pans. Not very big, so
to speak.
But either way help her out, . . . picking up . . .
equipment, parts that maybe . . . were heavy for her.
You know, just things like that.

When asked how Mercado appeared to be working after her
accident in comparison to before the accident, the manager
testified:

Um, as she did normally, you know. Again, I mean,
we still helped her out with heavy things. We still
helped her out—I wouldn’t say there was any, like,
she wouldn’t be able to move it. . . . She moved it
minimal. But like I said, there wasn’t anything that
she had to carry or lift, because we would help her
out with that. . . . I would say that she was normal.

Thus, both before and after her accident, Mercado received
occasional help from her co-workers in lifting heavy items, a
circumstance that actually seems rather unexceptional when an
older, frailer worker is surrounded with younger, stronger co-
workers.

¶11 Despite Mercado’s argument that she was performing “a
sliver of the regular job of dishwasher” because she could not lift
heavy items after her injury, the record demonstrates that her post-
injury performance was essentially unchanged from the way she
performed her job for more than a decade before her accident.
During that period, too, she could not lift heavy items. But
Mercado continuously worked at Autogrill for about eleven years

20130859-CA 6 2014 UT App 268
Mercado v. Labor Commission

before her accident, with her co-workers’ assistance in lifting heavy
items, which supports the conclusion that Mercado was able to
perform the essential functions of her position before and after her
accident, i.e., “scraping food off of dishes and loading the dishes
onto a wheeled rack that she pushed into a dishwashing machine.”
There is no evidence that Mercado could no longer perform these
core duties after her accident. Accordingly, the fact that Mercado
received continued help from her co-workers in lifting heavy items
after her accident does nothing to refute the Commission’s
conclusion that Mercado was still able to perform the essential
functions of her dishwasher position with Autogrill once her arm
stabilized and she returned to work.

¶12 The Commission also briefly addressed the “odd-lot”
doctrine from Olsen v. Labor Commission, 2011 UT App 70, 249 P.3d
586. In Olsen, a worker was able to continue in his job after an
industrial accident cost him an arm. Id. ¶¶ 4, 7. We considered
whether his return to work signified that he could perform the
duties generally required in his occupation.3 See id. ¶ 18. We
explained that

[t]he fact that an employee returned to work for
some period of time following his industrial injury
does not automatically preclude him from claiming
permanent total disability benefits at a later date if he
continues to suffer substantial pain throughout the
period of his continued employment or if his
industrial injury worsens to the point that he is no
longer able to maintain regular employment.

Id. ¶ 20. Thus, “a claimant is not required to continue working
merely because someone is willing to hire him if he must exert
superhuman efforts . . . in order to do so.” Id. (citation and internal

3. “Odd-lot” is a peculiar—and not very apt—term. But it has deep
roots. See generally Olsen v. Labor Comm’n, 2011 UT App 70, ¶ 11 n.1,
249 P.3d 586.

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Mercado v. Labor Commission

quotation marks omitted). Rather, a claimant’s return to work
“must be considered in concert with the condition under which [the
claimant] continued his employment.” Id. (emphasis and alteration
in original) (citation and internal quotation marks omitted).

¶13 In this case, the Commission found that Mercado failed to
show that her physical condition deteriorated after the accident to
the point that she became “unable to maintain employment.” And
Mercado admitted that she was physically able to continue
working for Autogrill after her injury. Moreover, although
Mercado told her doctor that she had “some pain at night,” she also
told him it was “tolerable.” Mercado presented no evidence that
she was in “substantial pain.” See id. Finally, Mercado returned to
work at Autogrill under the same condition—receiving help from
her co-workers in lifting heavy items—as before her accident.
Therefore, the Commission had a sufficient basis for denying
Mercado benefits under the odd-lot doctrine.

¶14 Based on the foregoing, we conclude that substantial
evidence supports the Commission’s finding that Mercado could
still perform the essential functions of work for which she was
qualified at the time of her accident.4 It is the closure of Autogrill’s

4. In regard to Mercado’s prior work as a fruit vendor in Peru, the
Commission determined that while Mercado “has not worked
buying and selling fruit for many years,” “the implication that her
age, lack of education and diminished eyesight disqualified her
from such work is unconvincing because such characteristics did
not prevent her from working for Autogrill.” Thus, the
Commission concluded, Mercado is still able to perform the
essential functions of a fruit vendor. Because we conclude that
Mercado is still able to perform the essential functions of a
dishwasher, we do not address in full the Commission’s finding
that Mercado could perform the essential functions of a fruit
vendor. It does appear, however, that the Commission’s focus was
misplaced. The kind of one-person roadside fruit vending that
Mercado undertook in Peru is simply not a viable employment
(continued...)

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Mercado v. Labor Commission

airport operation—not Mercado’s broken arm—that explains the
loss of her position with Autogrill.5

¶15 Mercado next argues that the Commission erred by finding
that Mercado’s left-arm injury was not the direct cause of her
permanent total disability under section 34A-2-413(1)(b)(iii). We
will disturb the Commission’s factual findings only if they are “not
supported by substantial evidence when viewed in light of the
whole record before the court.” Utah Code Ann. § 63G-4-403(4)(g)
(LexisNexis 2011). As previously discussed, “[s]ubstantial evidence
exists when the factual findings support more than a mere scintilla
of evidence . . . though something less than the weight of the
evidence.” Martinez v. Media-Paymaster Plus, 2007 UT 42, ¶ 35, 164
P.3d 384 (omission in original) (citation and internal quotation
marks omitted).

¶16 The Commission found that “[t]he evidence presented casts
doubt on a causal connection between [Mercado’s] work accident
and any disability.” Mercado testified that she was “capable of
continuing to work for Autogrill [at the time its airport business
was closed], but that it was communicated to her that she would
receive a call to return to work when the restaurant reopened.” The
manager gave “credible testimony”—in the words of the
Commission—that she gave Mercado a number to call to inquire
about being rehired, but Mercado never called. Based on this
evidence, the Commission determined that “neither the work
accident nor slow-developing consequences from the accident

4. (...continued)
option in Salt Lake County. Even if Mercado can still perform the
essential functions of a Peruvian fruit vendor, the notion that she
can support herself in such a position in this day and age, and in
this locale, seems unrealistic.

5. Indeed, Mercado acknowledges in her brief that “[p]roof of
withdrawal from the labor market due to non-medical reasons is
proof that the ‘industrial accident’ is not the ‘direct cause’ of
‘disability,’ i.e., an inability to participate in the labor market.”

20130859-CA 9 2014 UT App 268
Mercado v. Labor Commission

ultimately led to [Mercado] becoming unable to work. Rather, it
seems [Mercado] did not follow the specific instructions given to
her in order to return to her position with Autogrill.”6

¶17 Mercado argues that there is no evidence that Autogrill
would have rehired her had she reapplied for her dishwasher
position. But there is also no evidence that she would not have
been rehired had she accepted the invitation to call back and to
reapply in timely fashion. In any event, she has not provided any
evidence that her injury was the direct cause of her inability to
work at Autogrill once it re-opened, or anywhere else for that
matter. The record as a whole demonstrates that Mercado’s
inability to work is more causally linked to her inability to find
work by reason of her age and frailty than it is to an inability to
perform work specifically because of her injury.7 Thus, the

6. Mercado testified that she could still do the work she did when
employed by Autogrill and that she would return to work—and
could work—if the same position were offered to her.

7. The Workers’ Compensation Act was not created to provide
compensation during periods of unemployment arising from
circumstances unrelated to workplace injuries or to provide
compensation during retirement. Rather, the purpose of the act is
to provide an injured employee with “an income during the period
of his total disability as well as compensation for any resulting
permanent disability, to eliminate the expense, delay, and
uncertainty of the employee having to prove the employer’s
negligence, and to place the burden of industrial injuries on
industry.” Merrill v. Utah Labor Comm’n, 2009 UT 26, ¶ 24, 223 P.3d
1089 (citation and internal quotation marks omitted). “In exchange
for their right to sue, injured workers receive compensation for
damages incurred by an on-the-job injury including compensation
for the injury itself; medical, nurse, and hospital services; and
medicines.” Id. ¶ 25. See also Utah Code Ann. § 34A-2-401
(LexisNexis 2011) (describing the benefits provided to an employee
injured in the course of employment). As we previously noted,
(continued...)

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Mercado v. Labor Commission

Commission’s determination that Mercado failed to show that her
work accident was the direct cause of her claimed permanent total
disability, or even that she is permanently and totally disabled, is
supported by substantial evidence.

¶18 We conclude that substantial evidence supports the
Commission’s conclusions that Mercado could still perform the
essential functions of work for which she was qualified at the time
of her accident and that Mercado’s accident was not the direct
cause of the permanent total disability she now claims.
Accordingly, we decline to disturb the Commission’s decision.

7. (...continued)
Autogrill’s workers’ compensation carrier paid for Mercado’s
medical expenses, including surgery to repair her arm, as well as
for temporary disability benefits while Mercado was recovering
from her injury. Mercado, therefore, has received the intended
benefits of the workers’ compensation scheme. Consequently, any
of Mercado’s ongoing needs resulting from her age and general
frailty are not covered by workers’ compensation but hopefully
have been—or will be—addressed by other governmental
programs, supportive family members, or charitable organizations.
As was recognized at oral argument, Mercado’s lifelong hard work
and continued determination to be economically self-sufficient
make her very deserving of assistance and support. Nothing in this
decision confirming that she is not entitled to a particular benefit
from a particular program should be taken to suggest otherwise.

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