MICHAEL R. MURRAY, Petitioner, v. UTAH LABOR COMMISSION, UTAH STATE PARKS AND RECREATION, and WORKERS COMPENSATION FUND, Respondents.
No. 20120232
SUPREME COURT OF THE STATE OF UTAH
Filed June 28, 2013
2013 UT 38
On Certiorari to the Utah Court of Appeals. This opinion is subject to revision before final publication in the Pacific Reporter
Benjamin T. Davis, Salt Lake City, for petitioner
James R. Black, Salt Lake City, Jamison D. Ashby, Sandy, for respondents
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which ASSOCIATE CHIEF JUSTICE NEHRING, JUSTICE DURHAM, JUSTICE PARRISH, and JUSTICE LEE joined
CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 We granted certiorari in this case to determine two questions. First, we must decide whether the court of appeals erred in reviewing a Labor Commission decision, which applied law to fact, for an “abuse of discretion” rather than as a mixed question of law and fact. Second, we must decide whether the court of appeals erred in ruling that an employee who injured his back when a small wave unexpectedly rocked his boat failed to establish that it was his act of steadying himself, rather than a preexisting back condition, that was the legal cause of his injury. We conclude that the court of appeals should have reviewed the Labor Commission‘s decision in this case as a traditional mixed
BACKGROUND
¶2 The parties do not dispute the facts in this case. On July 13, 2008, Petitioner Michael R. Murray was working as a park ranger for Utah State Parks and Recreation. At approximately 11:00 a.m. that day, Mr. Murray was preparing to go on boating patrol at Red Fleet State Park. The patrol boat was tied by both the bow and the stern to the end of a dock that extended thirty-five to forty feet into the water. The boat and dock were located in an area that was “usually . . . a no-wake zone.” Mr. Murray started the boat and untied the bow. He then went to untie the stern. The cable at the stern was locked with a combination lock. Mr. Murray bent over the edge of the boat, the height of which was slightly above his knees, at a thirty-five to forty degree angle. He was holding the cable and the lock in his left hand and entering the combination with his right. At the time, Mr. Murray was wearing a fifteen-pound service belt and a one-pound inflatable life jacket.
¶3 While he was in this position, a five- to six-inch wave from another boat‘s wake unexpectedly rocked the patrol boat, causing Mr. Murray to lose his balance. Mr. Murray steadied himself by shifting his right foot against the side of the boat, grabbing the side of the boat with his right hand, and twisting his body. He immediately felt a slight pain in his lower back, but he nevertheless went on patrol. The pain worsened over the next two to three hours to the point that Mr. Murray was forced to leave work early. The pain continued to increase over the next several days, and he sought medical attention.
¶4 On September 29, 2008, Mr. Murray filed a worker‘s compensation claim with the Utah Labor Commission (Commission). The Administrative Law Judge (ALJ) denied Mr. Murray‘s claim. She found that the accident aggravated a preexisting lower-back condition that had been “mostly asymptomatic” prior to the accident. She concluded that although the “unexpected” wave was the factual cause of Mr. Murray‘s injury, it was not the legal cause because it did not cause him “to go through any unusual exertions. He lost his balance a little but did not drop the lock or fall and was able to steady himself easily.”
¶6 Mr. Murray appealed the Commission‘s order to the Utah Court of Appeals.1 The court reviewed the Commission‘s order under an “abuse of discretion” standard,2 concluding that “the Legislature granted the Labor Commission discretion to apply the law to the cases before it.”3 Applying that standard, the court ruled that the Commission‘s determination that Mr. Murray failed to prove legal causation was “reasonable” and affirmed.4 Mr. Murray filed a timely petition for certiorari, which we granted. We have jurisdiction pursuant to
STANDARD OF REVIEW
¶7 “On certiorari, we review for correctness the decision of the court of appeals, not the decision of the [agency].”5 And “[t]he correctness of the court of appeals’ decision turns, in part, on whether it accurately reviewed the [agency‘s] decision under the appropriate standard of review.”6
ANALYSIS
¶8 We first consider whether the plain language of the Utah Administrative Procedures Act (UAPA)7 necessarily incorporates standards of review so as to preclude application of our well-established approach to mixed questions of law and fact. Second, we consider whether the Commission‘s application of the law to the facts of Mr. Murray‘s case involved discretion, which would
I. UNDER A PLAIN-LANGUAGE INTERPRETATION OF UAPA, SECTION 63G-4-403 INCORPORATES STANDARDS OF REVIEW FOR SOME, BUT NOT ALL, AGENCY ACTION AND DOES NOT FORECLOSE OUR TRADITIONAL APPROACH FOR DETERMINING THE APPROPRIATE STANDARD OF REVIEW
¶9 The court of appeals relied on UAPA to determine which standard of review applies in this case,8 concluding that, under our UAPA precedent, “questions of law and mixed questions of law and fact are generally reviewed for correctness.”9 It also recognized an exception to this correctness standard that applies when “the [L]egislature has either explicitly or implicitly granted discretion to the agency to interpret or apply the law.”10 Relying on this approach, the court determined that when a statute delegates discretion to an agency, it must review the agency‘s action for an abuse of discretion.11
¶10 Mr. Murray contends that we have effectively overruled the approach relied on by the court of appeals. He points out that in Drake v. Industrial Commission12 and Salt Lake City Corp. v. Labor Commission,13 which both involved Commission decisions, we employed our traditional approach for determining the appropriate standard of review. Under this approach, we first characterize the “issue as either a question of fact, a question of law, or a mixed question requiring application of the law to the facts” and then apply the corresponding level of deference to the
¶11 The court of appeals faced a difficult decision in this case given our inconsistent precedent on UAPA standards of review. The court was certainly correct that UAPA applies to Mr. Murray‘s case. Because Mr. Murray seeks relief from the Commission‘s order denying him compensation benefits, we agree that UAPA governs our review of his claims on appeal.15 But under the interpretation of UAPA we announce below, we disagree that UAPA necessarily forecloses our traditional approach for determining the appropriate standard of review.
¶12 In Morton International, Inc. v. Tax Commission, we stated that UAPA “incorporates standards that appellate courts are to employ when reviewing allegations of agency error.”16 We derived these standards from what is now
¶13 As the court of appeals recognized in its opinion in this case, we have a significant amount of precedent applying Morton‘s interpretation of UAPA.22 But we took a different approach to reviewing agency applications of law to fact beginning with Drake v. Industrial Commission. In Drake, we analyzed the “special errand” rule to determine whether an employee was injured within the scope and course of her employment for purposes of receiving benefits under the Workers Compensation Act.23 In selecting a standard of review, we turned to State v. Pena, a criminal case that analyzed the level of deference appropriate for a trial court‘s determination of a mixed question of law and fact.24 Relying on Pena, we recognized that “[w]hether an employee was injured while on a special errand is . . . [a] highly fact-sensitive [question of law].”25 Thus, we stated it “is a question that we cannot profitably review de novo in every case because we cannot hope to work out a coherent statement of the law through a course of such decisions.”26 We accordingly applied
¶14 We later decided Salt Lake City Corp. v. Labor Commission.28 There, we relied on Drake for selecting a standard of review for a Commission decision applying the “going and coming” rule to determine if an employee was injured within the scope and course of employment.29 We characterized the standard of review applied in Drake as “conditionally deferential” and concluded that, like “special errand” cases, Commission decisions concerning the “going and coming” rule also required conditional deference.30 We accordingly adopted and applied Drake‘s standard of review in Salt Lake City Corp.31
¶15 We decided both Drake and Salt Lake City Corp. well after UAPA became applicable in January 1988.32 Yet, in both cases, we failed to mention UAPA or explicitly overrule our interpretation of UAPA in Morton.33 In light of this conflicting precedent on UAPA standards of review, we take the opportunity to clarify our interpretation of UAPA and the role it plays in our selection of a standard of review for agency decisions.
¶17
(a) the agency action, or the statute or rule on which the agency action is based, is unconstitutional on its face or as applied;
(b) the agency has acted beyond the jurisdiction conferred by any statute;
(c) the agency has not decided all of the issues requiring resolution;
(d) the agency has erroneously interpreted or applied the law;
(e) the agency has engaged in an unlawful procedure or decision-making process, or has failed to follow prescribed procedure;
(f) the persons taking the agency action were illegally constituted as a decision-making body or were subject to disqualification;
(g) the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court;
(h) the agency action is:
(i) an abuse of the discretion delegated to the agency by statute;
(ii) contrary to a rule of the agency;
(iii) contrary to the agency‘s prior practice, unless the agency justifies the inconsistency by giving facts and reasons that demonstrate a fair and rational basis for the inconsistency; or
(iv) otherwise arbitrary or capricious.
¶18 While the above provisions clearly set forth and limit the types of agency actions for which appellate courts may grant relief, they do not expressly mandate standards of review courts must employ when reviewing those agency actions. The Legislature does not exhibit a clear intent—in
¶19 Certain provisions of
¶20 Importantly, the Legislature‘s characterization of some agency actions in terms of a standard of review is further evidence that it did not intend to completely displace our traditional standard of review framework. This is because the Legislature, while implying a standard of review for some agency actions, did not attempt to define what that standard requires. Thus, even where
¶21 But most agency actions listed in
¶22 Based on the above plain-language analysis, we conclude that
¶23 The appropriate standard of review in this case depends on the type of agency action alleged to be erroneous and whether that action incorporates a specific standard of review under
¶24 The first question under this approach is whether the Commission‘s decision “qualifies as a finding of fact, a conclusion of law, or a determination of a mixed question of law and fact.”49 Mixed questions “involv[e] application of a legal standard to a set of facts unique to a particular case.”50 Indeed, in the agency context, we have stated that we “use[] the terms mixed question of fact and law and application of the law interchangeably.”51 Accordingly, Mr. Murray‘s claim that the Commission misapplied the law to the facts of his case presents a traditional mixed question of law and fact.
¶26 The court of appeals’ decision was understandable in light of our past decisions concluding that we review an agency‘s decision for an abuse of discretion when the Legislature has granted the agency discretion to interpret or apply the law.54 We last considered a delegation of discretion in LPI Services v. McGee.55 There we recognized that “[t]he [L]egislature may grant an agency discretion, either explicitly or implicitly, to interpret specific statutory terms.”56 We have found implicit delegations of discretion where “the operative terms of a statute are broad and generalized” or “there is more than one permissible reading of the statute” and no basis in our rules of construction to prefer one interpretation to another.57
¶27 We have not clearly articulated what constitutes an explicit delegation of discretion, although we have offered examples. In LPI Services, we suggested that the Legislature explicitly delegated discretion by mandating that “[t]he [Labor] [C]ommission shall establish rules regarding part-time work and offset” to account for a permanently disabled employee‘s income
¶28 The above approach to identifying delegations of discretion has proved difficult to apply.62 And we now conclude that it is inconsistent with the interpretation of
¶29 We have already recognized in past decisions that “an administrative grant to administer a statute is not to be confused with a grant of discretion to interpret the statute.”64 This is because “all agencies are necessarily granted authority by statute to administer portions of the code.”65 We now go a step further and conclude that, for an “abuse of discretion” standard to apply on appeal, the agency action under review must involve “discretion.” Only then can we properly review the action for an “abuse of discretion,” as required by the plain language of
¶30 This conclusion requires us to determine whether the Commission‘s decision in this case—a mixed finding of law and fact—is the type of decision that involves discretion. While the term “discretion” within the law defies precise definition,66 the Legislature‘s use of the term in
¶31 An example of such a delegation can be found in
¶32 In order to properly “determine and prescribe, by order, changes in the form of the schedules,” the PSC need only find it “expedient” to do so. There are a range of “acceptable” fact scenarios that the PSC could either accept or reject as being expedient without risking reversal by an appellate court. And the appellate court will review the PSC‘s discretionary decision for an “abuse of discretion” to ensure that it falls within the bounds of reasonableness and rationality.71 Reasonableness, in turn, is
better or worse” (internal quotation marks omitted)); Maurice Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D. 173, 176 (1978) (stating that, for discretionary decisions, “appellate courts will allow the trial judge wide scope for decision, free from normal restraints that apply to legal determinations” and that “[t]he trial judge acting in discretion is granted a limited right to be wrong, by appellate court standards, without being reversed“).
¶33 Admittedly, our characterization of discretion is broad and in need of refinement through application in future cases. But it adequately demonstrates that the Commission‘s action in this case did not involve discretion. As we have already stated, a mixed question arises when an agency or lower court must apply “a legal standard to a set of facts unique to a particular case.”73 Importantly, the question of whether a set of facts falls within a legal standard is itself a question of law.74 And like all questions of law, the question of whether certain facts fulfill a legal standard has a single “right” answer in terms of the trajectory of the law.75 Our precedent on mixed questions simply reflects the idea that we, as an appellate court, are not always in the best position to say what that “right” answer is.76 Thus, in the context of mixed questions, we sometimes afford deference to a trial court‘s decision as a matter of institutional competency.77 But the trial
¶34 Accordingly, we conclude that Mr. Murray‘s claim constitutes a traditional mixed question of law and fact and that the Commission‘s authority to apply the law in this case is not the type of discretionary action that warrants an “abuse of discretion” standard of review under our plain-language interpretation of UAPA.
III. ALTHOUGH THE COURT OF APPEALS APPLIED THE WRONG STANDARD OF REVIEW IN THIS CASE, ITS ERROR WAS HARMLESS, AND WE AFFIRM ITS DECISION TO UPHOLD THE COMMISSION‘S ORDER RELATING TO MR. MURRAY‘S FAILURE TO ESTABLISH LEGAL CAUSE
¶35 Having determined that the Commission‘s decision in this case constitutes a mixed finding of law and fact, we now consider (A) the amount of deference, if any, we should afford its finding on appeal, and (B) whether the court of appeals erred in concluding that Mr. Murray failed to establish legal cause.
A. The Commission‘s Decision was “Law-Like” and Warrants a Nondeferential Standard of Review
¶36 The standard of review we apply when reviewing a mixed question can be either deferential or nondeferential, depending on the following three factors:
(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court‘s application of the legal rule relies on “facts” observed by the trial judge, such as a witness‘s appearance and demeanor, relevant to the application of the law that
cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting [deference] to trial courts.79
¶37 We recently analyzed these factors in In re Adoption of Baby B.80 There we recognized that the deference granted under the factors “rests on the notion that the mixed finding is not ‘law-like’ because it does not lend itself to consistent resolution by a uniform body of appellate precedent” or “is ‘fact-like’ because the trial court is in a superior position to decide it.”81
¶38 We stated that an example of a mixed finding that warrants deference on appeal is a finding of negligence in a personal injury case.82 A negligence finding is not “law-like” in that it is so factually complex that “no rule adequately addressing the relevance of all [the] facts can be spelled out.”83 And it is “fact-like” because a trial court will often “be affected by [its] observation of a competing witness‘s appearance and demeanor on matters that cannot be adequately reflected in the record available to appellate courts,” thus placing it in a superior position to assess credibility.84
¶39 On the other hand, “a finding that a common set of recurring law enforcement practices qualifies as a ‘reasonable’ search or seizure” would warrant nondeferential review.85 Such a finding is “law-like” in that law enforcement and the general public need “a consistent rule established by set appellate precedent.”86 And it is not “fact-like” because the ultimate
¶40 Based on the above principles, we conclude that the Commission‘s decision here that Mr. Murray failed to establish legal cause warrants nondeferential review. Its decision was “law-like” in that, as in the context of a reasonable search or seizure, the Commission had to decide whether a set of facts qualified as “unusual” for purposes of determining legal cause. It is true that this can potentially be a fact-intensive inquiry. Indeed, we have generally recognized that “whether or not [an] injury arises out of or within the scope of employment depends upon the particular facts of each case.”88 But in this case the facts are not at issue. So the ultimate question is the legal effect of the facts rather than witness credibility or demeanor. In the context of a legal cause analysis for preexisting injuries, the legal effect of a given set of facts depends on their “unusualness.” And “unusualness“—like “reasonableness“—is an objective legal standard that we are in a better position to analyze than the Commission.89
B. Even Applying a Nondeferential Standard of Review, We Agree with the Court of Appeals that the Commission Correctly Concluded that Mr. Murray‘s Employment Activity was not “Unusual”
¶41 Although the court of appeals applied the wrong standard of review in this case, its error was harmless. “[H]armless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.”90 We conclude that even if the court of appeals had applied a nondeferential standard of review, its decision regarding the Commission‘s order would be the same.
¶42 The court of appeals concluded that Mr. Murray failed to establish legal cause after considering “[Mr.] Murray‘s exertion as well as the working conditions that [Mr.] Murray faced at the time
¶43 But Mr. Murray contends that our holding in Allen applies only to “intentional and exertional workplace activities.” His injury, in contrast, was “for the most part . . . the result of an unexpected and sudden impact or force which knocked and threw him off balance—an impact against which he mostly reacted reflexively.” Mr. Murray argues that for injuries caused by nonexertional factors, it does not make sense to require an unusual exertion. We disagree with Mr. Murray‘s view of the Allen standard.
¶44 The Utah Workers’ Compensation Act provides that an employee injured “by accident arising out of and in the course of the employee‘s employment . . . shall be paid . . . compensation for loss sustained on account of the injury.”95 We have recognized that “[t]his statute creates two prerequisites for a finding of a compensable injury.”96 “First, the injury must be ‘by accident.’ Second, the language ‘arising out of [and] in the course of employment’ requires that there be a causal connection between the injury and the employment.”97 Only the second prerequisite—causal connection—is at issue here.
¶46 But medical and legal causation diverge for an employee with a causally contributing preexisting condition, and here it is undisputed that Mr. Murray had such a condition. In Allen, we held that to prove legal causation, an employee with a preexisting condition must show that “the employment contributed something substantial to increase the risk he already faced in everyday life because of his condition.”100 We recognized that this heightened showing of legal cause is “necessary to distinguish those injuries which . . . coincidentally occur at work because a preexisting condition results in symptoms which appear during work hours without any enhancement from the workplace.”101
¶47 Our decision in Allen also recognized that the required workplace enhancement is “usually supplied by an exertion greater than that undertaken in normal, everyday life.”102 Allen‘s focus on “exertions” is understandable given that the facts of that case involved clear exertions—moving and lifting.103 But our decision in Allen ultimately considered the totality of the circumstances, including the employee‘s exertions and the workplace conditions. For example, in Allen, the activity that precipitated the employee‘s injury was “moving and lifting several piles of dairy products.”104 But we made clear that
¶48 “Unusualness” is an objective standard. We compare the activity that precipitated the employee‘s injury with “the usual wear and tear and exertions of nonemployment life.”109 The focus is on “what typical nonemployment activities are generally expected of people in today‘s society, not what this particular claimant is accustomed to doing.”110 This question involves two steps: first, we must characterize the employment-related activity that precipitated the employee‘s injury, taking into account the totality of the circumstances; and second, we must determine whether this activity is objectively unusual or extraordinary.111
¶49 While the first step is a matter of fact,112 the parties in this case do not dispute the circumstances surrounding Mr. Murray‘s accident. Mr. Murray bent over the edge of the boat, the height of which was slightly above his knees, at a thirty-five to forty degree
¶50 Mr. Murray steadied himself by shifting his right foot against the side of the boat, grabbing the side of the boat with his right hand, and twisting his body. He immediately felt a slight pain in his lower back, but he nevertheless went on patrol. Accordingly, as the court of appeals recognized, the activity that precipitated Mr. Murray‘s injury was the act of steadying himself.113 And we must account for the fact that he was bent over the edge of the boat at a thirty-five to forty degree angle, that he was wearing a fifteen-pound service belt and a one-pound inflatable life jacket, and that the five- to six-inch wave that hit his boat was unexpected.
¶51 Having characterized the totality of Mr. Murray‘s precipitating activity, we continue to the next step and determine whether Mr. Murray‘s exertion and surrounding circumstances were objectively “unusual or extraordinary.”114 Utah courts have deemed employment activities to be “unusual” or “extraordinary” when they require an employee to endure jumping, lifting great weight, or repetition. For example, in Miera v. Industrial Commission, we concluded that an employee‘s “jumps into an eight-foot hole from a four-foot platform at thirty-minute intervals” was unusual.115 And in Crosland v. Industrial Commission, the court of appeals recognized that moving a two-hundred-pound sign qualified as an unusual activity.116 Likewise, in Stouffer Foods Corp. v. Industrial Commission, the court of appeals concluded that continually gripping high pressure hoses was unusual.117 But in Schreiber v. Labor Commission, the court of appeals determined that there was nothing unusual about the
¶52 While the facts of these cases are not directly on point with Mr. Murray‘s, they exhibit the objective standard we must apply in this case, which is to determine “what typical nonemployment activities are generally expected of people in today‘s society.”120 People are generally not expected to lift two-hundred pounds, jump into eight-foot holes, or continually grip a high pressure hose. But they are expected to withstand minor force.
¶53 In light of the above analysis, the court of appeals correctly upheld the Commission‘s order in this case. The totality of Mr. Murray‘s precipitating activity—both exertional and nonexertional—was not unusual. As the court of appeals recognized, the totality of Mr. Murray‘s accident is comparable to nonemployment activities generally expected in today‘s society.121 To borrow the court of appeals’ example, people are generally expected to travel in everyday life. They are expected to carry luggage or bags often heavier and less secure than Mr. Murray‘s service belt and life jacket. And they are generally expected to encounter bumpy rides in planes or buses and maintain and regain their balance in the process. The unexpected force Mr. Murray experienced, his awkward position, and the service belt and jacket he was wearing when the small wave rocked his boat were not unusual given the unexpected rigors we expect people to endure while traveling with clumsy luggage. We agree with the court of appeals that the “whole” of Mr. Murray‘s accident “entailed nothing unusual or extraordinary that could be presumed to have contributed something substantial to increase the risk of injury.”122 Accordingly, even applying a nondeferential
CONCLUSION
¶54 The court of appeals erred in applying an “abuse of discretion” standard of review to the Commission‘s decision denying Mr. Murray compensation benefits. The Commission‘s decision constituted a mixed finding of law and fact that did not involve discretion. Under the plain language of UAPA, we apply our traditional approach to reviewing the Commission‘s mixed finding. But even under a nondeferential standard of review, Mr. Murray failed to establish that his boat accident, rather than his preexisting back condition, was the legal cause of his injury. We therefore uphold the court of appeals’ ultimate decision to deny him compensation benefits.