From Casetext: Smarter Legal Research

Zepeda v. Labor Comm'n

Court of Appeals of Utah
Dec 16, 2021
2021 UT App. 140 (Utah Ct. App. 2021)

Opinion

20190938-CA

12-16-2021

Carlos Zepeda, Petitioner, v. Labor Commission, Reliable Auto Mechanics, and Farmington Casualty Company, Respondents.

Andrew M. Wadsworth, Attorney for Petitioner Christin Bechmann and Jeffrey A. Callister, Attorneys for Respondents Reliable Auto Mechanics and Farmington Casualty Company


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.

Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

OPINION

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 supported by substantial evidence, we decline to disturb its decision.

BACKGROUND

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.

¶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 December 8. Reliable fired Zepeda on December 13. Zepeda has not been employed since.

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 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. 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 opined that there was "a direct cause and relationship between the diagnosis . . . and the October 10, 2014 industrial accident."

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/painmanagement/rotator-cuff-tendinopathy [https://perma.cc/XS6WL5XV]. "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/53F97CZ9].

¶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, 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. The panel noted that 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."

"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 "pain behavior is exhibited out of proportion to the physiologic or organic findings."

¶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 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 "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 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 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 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 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. 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 stipulated dismissal of the First Action had no preclusive effect on the present case.

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)).

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." The time for filing objections to a medical 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).

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).

¶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 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. 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 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 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."
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.

¶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 U.S. 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.


Summaries of

Zepeda v. Labor Comm'n

Court of Appeals of Utah
Dec 16, 2021
2021 UT App. 140 (Utah Ct. App. 2021)
Case details for

Zepeda v. Labor Comm'n

Case Details

Full title:Carlos Zepeda, Petitioner, v. Labor Commission, Reliable Auto Mechanics…

Court:Court of Appeals of Utah

Date published: Dec 16, 2021

Citations

2021 UT App. 140 (Utah Ct. App. 2021)
504 P.3d 712

Citing Cases

Stage Dep't Store & N.H. Ins. Co. v. Magnuson

¶25 Stage argues that the Appeals Board erred in setting aside the ALJ's determination that Magnuson reached…