An individual may be found to be temporary totally disabled based on statements of extreme pain interfering with work activities even if a physician has not placed a Petitioner on any restrictions.

In Velasco, the petitioner injured his index finger while doing restoration, carpet cleaning, and emergency flood work. The petitioner underwent surgery and was restricted to light-duty work. On October 12, 2018, the petitioner’s treating physician, Dr. Burrows, notified him that he could not treat him further because his bills had not been paid. Earlier, Dr. Burrows had set October 15 as the target date to release the petitioner to full-duty work. After that appointment, the petitioner’s condition worsened while he worked various jobs, and he eventually stopped working altogether. In March 2019, a new doctor, Dr. Warren, opined that the petitioner could not work and recommended The petitioner’s finger be amputated. After the amputation, the petitioner was released for full-duty work on May 28, 2019.

The Appeals Board held that the petitioner was not eligible for temporary total disability benefits from October 15, 2018 to March 24, 2019. The petitioner appealed.

Despite the lack of concurrent work restrictions or work release, the Utah Court of Appeals (the “Court”) held that there was “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 a doctor.” The Court found that the petitioner’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. The Court remanded for consideration of the exact dates the petitioner was disabled.

Velasco v. Labor Comm’n, 2021 UT App 1.

Want to know more? Contact Jeffrey Callister at jcallister@pollartmiller.com or 877-259-5693.

February 2021 Newsletter

2021-02-26T14:30:00+00:00