Zepeda v. Labor Comm'n

504 P.3d 712

Carlos ZEPEDA, Petitioner,

v.LABOR COMMISSION, Reliable Auto Mechanics, and Farmington Casualty Company, Respondents.

No. 20190938-CA

Court of Appeals of Utah.

Filed December 16, 2021

Andrew M. Wadsworth, Salt Lake City, Attorney for Petitioner

Christin Bechmann and Jeffrey A. Callister, Murray, 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

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.

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 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 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, 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 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 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...