Velasco v. Labor Commission, 010721 UTCA, 20191003-CA

Docket Nº20191003-CA
Opinion JudgeCHRISTIANSEN FORSTER, JUDGE.
Party NameIsrael Velasco, Petitioner, v. Labor Commission, Response Team 1 LLC, and Zurich American Insurance Company, Respondents.
AttorneyJared 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 PanelJudge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.
Case DateJanuary 07, 2021
CourtCourt of Appeals of Utah

2021 UT App 1

Israel Velasco, Petitioner,

v.

Labor Commission, Response Team 1 LLC, and Zurich American Insurance Company, Respondents.

No. 20191003-CA

Court of Appeals of Utah

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.

OPINION

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.

BACKGROUND1

¶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."

¶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 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]

¶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.

¶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...

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