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

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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.”

 

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...)
Velasco v. Labor Commission

20191003-CA 5 2021 UT App 1

¶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.
Velasco v. Labor Commission

20191003-CA 6 2021 UT App 1

¶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 nonmedical 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...)
Velasco v. Labor Commission

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Board’s findings that construction and restaurant work were too 

painful for Velasco to perform6 and that he had to seek onehanded 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.”
Velasco v. Labor Commission

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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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20191003-CA 11 2021 UT App 1

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.