*1 C.J., HOWE, Associate J.,
DURHAM, concur. STEWART, J., C.J.,
HALL,
concur result. A. PAULSEN
THOMAS
COMPANY, Petitioner, OF INDUSTRIAL COMMISSION
UTAH, Indemnity Fund of and Default Commission, Re-
the Utah Industrial
spondents.
No. 21049.
Supreme Court of Utah.
Feb. 1989.
Rehearing Denied March
workers’ compensation benefits through the Commission. In October of hearing was held on the employee’s claim before an administrative judge law (“AU”). Both Paulsen and the employee appeared and testified. In January of 1985, the AU entered an order, accompa- by nied findings of fact and conclusions of (“the law original order”), which directed the payment of benefits to the employee. Although preсise scope origi- of the nal order is in dispute, it is clear the AU found that employee was in an industrial accident employed while by Paul- sen, that Paulsen did carry insurance coverage for compensation workers’ bene- Englund, Brad L. Tanner, Earl D. Salt fits due employees, its that Paulsen was City, Lake petitioner. for practical for all purposes insolvent and un- Steven M. Hadley, Pixton, Susan Salt able to the benefits to which the in- City, Lake respondents. jured employee entitled, and that the ZIMMERMAN, Justice: was, statute, required step Paulsen, Thomas A. dba Thomas A. Paul- compensate and employee.2 Based on (“Paulsen”), Company petitions sen for re- these findings, the AU ordered the Fund view of an order of the Industrial Commis- the employee’s expenses (“the Commission”) finding sion of Utah and his temporary permanent total and par- Paulsen liable workers’ disability benefits, tial totalling approxi- all injured employee by to an the mately $21,000. benefits None of Commission’s Default sought order, review of and (“the Fund”) ordering Paulsen to satis- fifteen entry, date of fy liability by making payment the order became final and subject was not challenges Fund.1 Paulsen the order on a review the Commission or the courts. procedural number of substantive and See 35-1-82.54, -82.55 grounds. portion affirm that We (Supp.1983). holding Commission’s decision Paulsen lia- original order, the AU did not employee's for the ble but reverse expressly order Paulsen to pay any of the portion pay- Paulsen to make amount awarded Approxi- directly to the Fund. The Fund will mately eight months after the or- have to seek satisfaction of Paulsen’s obli- final, der became the Fund asked the AU to enter an amended order expressly gation through procеedings the district stat- ing that Paulsen was liable for all amounts court. the Fund injury employee employee suffered an and that Paulsen was to pay directly during the construction of a build- spine his Fund all such amounts. The sought employee 1984. The entered ing April the re- redesignated the "Unin- 2. As stated in the version of section 35-1-107 in 1. In the Fund question, at effect created the time Employers’ sured Fund." See Utah Code Ann. (1988); compare amendment notes § 35-1-107 purpose paying assuring, (Interim Supp.1984) with id. to, persons entitled (1988). analysis our § 35-1-107 confine benefits when an becomes insolvent in effect at the time of the the law ... or otherwise does not have sufficient below, proceedings April through Octo- funds to cover workers’ lia- and therefore refer ber of bilities. ... If it becomes time, the name it carried at that the Default benefits, the fund will be liable for all obli- Further, Indemnity Fund. unless othеrwise in- gations as set forth.... dicated, all code references are to sections in 35-1-107(1) (Interim Supp. Utah Code Ann. § during period. effect that time 1984). order”) in Oc- (“the award from quested the Commission. unsuccessfully- See Utah of 1985. Paulsen -58, tober §§ -59 then Commission and by the If the review elects to Court. petition filed workers’ compensation system award, obtains an the employer is lia- grouped can be questions presented ble fоr the amount of that award. See challenges legal two broad *3 American Fuel Co. v. Industrial First, the AU err did order. amended 55 Utah 484-89, 187 P. original the order he amended when (1920); 633-35 Utah Code Ann. 35-1-58 § finding that Paulsen express include an (1988); (Interim -81 Supp. §§ paid amounts Fund for the was liable 1984).3 Second, did the injured employee? the pay the number of Utah employers are he ordered Paulsen err when unable to Fund? directly to the awards en amounts proрriety against of amend- tered they them first issue—the because are unin The find Paulsen expressly sured or underinsured and are ing lacking two subsidi- other financial result, to the Fund —subsumes resources. As a liable First, of sub- as a matter employees’ number of ary questions: proven awards have liable law, be held could Paulsen to be legisla stantive uncollectable. the Second, the were compensation? ture remedy problеm for the acted to by pass entering the procedures ing followed proper the Compensation Workers’ Default In finding Paulsen liable? order demnity Fund Act. See 1984 Utah Laws that Paulsen ch. purpose legislation There can be no doubt The § held was to employees’ could be assure that awards is an acci paid. employee paid by If an would be the if employer employment and during the course of оr dent the insurer was unable to do so. See insured, the em employer is 35-1-107(1) (Interim Utah Code Ann. § obtaining redress is means of ployee’s Supp.1984). sole given The Fund subro- compensation sys gation the workers’ right 35-1-60 paid Code Ann. employer tem. to the em for all amounts § (1988). However, employer an is not 35-1-107(3) (In Ann. ployee. Utah Code § required by statute, insured as see Utah 2A Lar Supp.1984); generally see A. terim (Supp.1983), em 35-1-46 son, Compensa Law The Workmen’s of ployee option seeking damages has the Here, found the AU 67.40 tion § brought employer a civil action employee uninsured.4 Paulsen was obtaining in the courts or of a workers’ compensation bene- claimed workers’ time, expenses] provid- related as the Indus- [and sections these effect at the 3. As in just. trial Commission considers part: ed in relevant (Interim Supp.1984) Utah Code Ann. 35-1-81 injured, Every employee whо is added). (emphasis employee every who is such dependents of Any employee, employer has failed whose killed, arising or in the out of accident comply requirements] with the [insurance in- employment, such wherever of his course may, proceeding against his in lieu of occurred, pur- accident was jury if the ..., employer by civil action in the courts file self-inflicted, compen- paid posefully shall application his with the commission for com- account of sustained on for loss sation pensation in accordance with the terms of this medical, nurse, death, amount for and such or title, and the commission shall hear and de- and, medicines, hospital service and application termine such as death, ex- of funeral such amount case cases; compensa- in other and the amount chapter. re- provided in this penses, ascertain and tion which commission payment of compensation and sponsibility for injured employee determine to be due to such medical, hospital nursing, services paid by ... shall be such medicines, expenses provided un- and funeral persons entitled thereto within ten employer and chapter shall be on the der receiving so notice of the amount thereof as on the and not carrier its insurance by the commission. fixed and determined (Interim Supp.1984) Utah Code (1988) (emphasis Ann. § Utah Code added). added). (emphasis provided for In addition did note that Paulsen had made a 4. The AU the insurance chapter or in this insurance, good effort to obtain an faith but carrier shall such reasonable sum AU’s reach. The Fund counters that fits and received an award. Under original imperfectly did include an primarily relevant Paulsen became re- expressed determination of Paulsen’s liabil- sponsible for the amount that award however, error, ity; of a because clerical matter, employee, either to the as an initial that determination was not made sufficient- extent or to the ly clear so that the Fund could be sure that employer’s stead. original order would be enforceable Having concluded that AU could against Paulsen. The Fund contends that have stated in the order that Paul- entirely proper it was for the AU to cor- Fund for all amounts sen was liable to the by way rect the clerical error of an amend- next ed order. proper procedures were followed whether entering containing the amended order could, truth, gist of pronouncement. clearly;5 however, have been written more express wе think effectively is that even if an state- it did settle the *4 liability. issue of liability Fund could Paulsen’s Our conclusion ment of order, reading is based on original specific in it of the placed the lan been guage sought light of the order party legal And no review of of the not. order, principles govern that it final and the issue the workers’ com that became pensation program. original order, from further consideration. was forеclosed af ter specifying the argues expenses that issue ad- medical the em He that when incurred, states, ployee had eight some dressed the amended order ex “[T]hese later, penses already beyond responsibility are the of employ- months it was the the employer, good ... the faith made agent with Paulsen’s efforts had absconded insurance obtain arranged premium for an insur- and had not cover- age. good applicant ... policy. purposes, Paulsen’s When the ance For our tried to make a impos- claim effort is irrelevant: section ... he was policy faith advised that no obligation employers on Rather, es an unconditional insurance had been ap- issued. it was, fact, insured, and Paulsen peared agent that the insurance ... abscond- Larson, Work- See 2A A. The Law uninsured. employer’s ed with the funds and did not Compensation 67.22 men’s purchase coverage- the Upon taking testi- mony employer, it was determined order, part, provided 5. The in relevant by the Judge Administrative Law that the em- as follows: ployer position was in pay no the medical FINDINGS OF FACT bills or the benefits due in this CONCLUSIONSOF LAW matter, for the practical reason that for all AND ORDER purposes the is insolvent. Accord- ingly, the Judge Administrative Law finds that FINDINGS OF FACT: provisions the regarding Section applicant herein sustained an industrial the Indemnity Default trig- Fund have been injury April on employed while the gered employee] such that [the is entitled to defendant, Paulsen, general Thomas contrac- an award from the Default tor. ... injuries he has sustained as a result of injury. his industrial The case was panel referred to a medical applicant ... [T]he ... [is entitled] for a permanent determination of partial the temporary disability total benefits ... and impairment. The panel medical found that permanent partial impairment benefits.... applicant the permanent has sustained a 15% partial impairment CONCLUSIONSOF LAW: body the whole due to employee] is entitled to workers’ com- injury [The April industrial 1984. The pensation benefits for the industrial he Judge adopts Administrative Law findings 1, 1984, April of the panel sustained on which accident medical as his own. during As а arose out of or the course of his em- injury, result of applicant has defendant, expenses [totalling! ployment sustained ... with the Thomas A. Paul- $6,804.49. sen, (uninsured). expenses These are ORDER: responsibility employer, since the IT IS THEREFORE ORDERED that the De- was uninsured prepare workers' purposes fault at the Treasurer, time of However, injury. industrial as Cus- vouchers State some mention should be employee] made of the todian of the tо [the situation sur- rounding the being temporary defendant's] ... as total disabili- uninsured. ...; ty lump file indicating contains information said benefits to be in a sum. describing compensa- Also, (1988).6 er.” present noting case, employee and tion awarded reasoned that absent a clari- fication, lacked insur- insolvent and might Paulsen encounter some difficulty states, employer was ance, docketing the original “[T]he order as judg- the medicаl bills or position in no Paulsen because the order did in this matter.” compensation benefits not make it entirely clear that Paulsen was the Fund to order directed Finally, the liable. As precaution, award, the amount of the amended order. only if obliged to do something the Fund In attacking order, Paulsen responsible and employer is first found argues that the pow- Commission lacks the pay. v. Utah State unable to See Carluсci er to make modifications outstanding 1335, 1337 Indus. orders, final especially changes substantive (In 35-1-107(1) such as those made in the order at issue. statements, read Supp.1984). These terim responds the Commission underlying are suffi light has the to correct clerical errors and determine that the AU did cient to show that the modification clerical, made was and did make that that Paulsen was liable substantive. We find the Fund’s sufficiently provide cleаr determination persuasive. notice. question The initial is whether Having concluded that the authority to correct cleri has adequately determined and described prior None of our errors in orders. cal liability, is whether question, and the cases have addressed *5 entering erred in expressly grant do not relevant statutes clarifying explanation order. brief spell power, much less why the clarification was shоuld be procedures to be followed. How out the helpful. Once the Commission enters an authority in ever, support for such we find finding an bene of the Code. section 35-1-78 pays fits and the Fund those Section as it at the was worded right by subroga the Fund has a in question, provides: time tion powers jurisdiction of the com- reimbursement. mission over each case shall be continu- 35-1-107(3) (Interim Supp.1984). ing, and it may from time to time make Fund’s usual method of еxercising this such change modification or respect right is to procedure follow the set forth in findings, former or orders with re- section 35-1-59. Under provision, spect thereto, opinion as in its may be may file with the district court justified. an
abstract of the Commission finding Utah Code Ann. (Supp.1983). liable; the employer filed, We once have held that order that this gives section judgment. is treated a broad authority See Utah make sub- specifying IT IS FURTHER ORDERED рarticular that the Default date hereof in detail the prepare necessary vouch- objections errors and and unless so filed this Treasurer, directing ers the State as Custodian subject Order shall be final and not to review Fund, employee] of the compensation to [the appeal. or permanent partial for a 15% impairment.... provides part: 6. That section in relevant IT IS FURTHER ORDERED that the Default any may An abstract of award be filed in prepare vouch- the office of the clerk of the district court of Treasurer, ers the State as Custodian state, any county in the and must be docketed employee] [the sum judgment in the docket of the district court ..., represents which amount the medical ex- thereof.... When so filed and docketed penses employee] incurred as a result [the upon award shall constitute а lien ... the real 1, 1984; injury April of the industrial employee] [the property employer.... may Execution provid- is to the medical care he issued thereon in the same manner Findings ers listed in the of Fact of this Order. with the same effect as if said award were a any IT IS FURTHER ORDERED that Mo- judgment foregoing tion for Review of the the district court. shall be filed (15) writing (1988). within fifteen Utah Code Ann. § 35-1-59
130 next is whether changes in its orders sub- stantive changes circumstances stantiаl amendment obtained was one See, Corp. e.g., Asphalt Barber correcting occurred. a clerical error. We think it 380, 371, 103 Utah v. Industrial Again, analogy may was. useful be made 270, 382, 266, (1943); 272 103 135 P.2d 60(a), to Utah Rule of Civil Procedure (Wolfe, C.J., 389, at 275 135 P.2d Utah at which addresses the of trial courts concurring). see no reason that section rule, to correct clerical errors. Under not also be construed to 35-1-78 should we have distinction drawn a between “cleri changes permit mere clerical in the Com- errors,” may correct, cal which a court philosophy orders. overall mission’s errors,” “judicial not. A which cler interpretation governing the of Utah’s recording ical error a judg is one made one of workers’ statutes is entry ment that judg results See, e.g., liberal construction. Carlucci v. ment which not conform to the does actual Comm’n, 725 at 1338. P.2d Industrial hand, intentiоn of the the other court. On legislature has directed that work- And the judicial in rendering error is one made compensation proceedings are not to ers’ judgment results in a substantively be with technicalities but are to burdened judgment. Atkin, incorrect Lindsay v. protect conducted so as the substan- (Utah 1984); 680 P.2d Stanger 402 v. spirit of rights of the within the tial Co., P.2d Sentinel Sec. Ins. 669 Life statutes. (Utah 1983); 1206 Lorrah, see also State Plumbing v. Edward Gardner & Gardner (Utah 1988) (address 761 P.2d Inс., Heating, ing substantially similar Utah R.Crim.P. see Utah Code 30(b)). above, As explained the original the foregoing, the basis of we On order did reflect a determination that Paul- authority conclude that the of the Commis- persuaded sen was liable. We are sion clerical errors under section to correct AU’s comparable provided failure to state this clearer 35-1-78 is terms inadvertence, merely i.e., trial courts Utah Rule оf Civil Proce- was a matter of 60(a), provides part: dure which relevant error, clerical and was correctable by way of judgments, orders or Clerical mistakes an order.7 *6 parts other of the record and errors arising oversight therein from or omis- or Having found that amended may sion be corrected the court at is stating Paulsen liable expressly der that
any time of its own initiative or on the entered, must consider we any party.... motion of claim, Paulsen’s final Commission or erred when it included amended 60(a); Utah R.Civ.P. Callihan v. De- cf. provision expressly a Paulsen der partment Indus., Labor and 10 Wash. argues Fund. Paulsen to reimburse the 153, App. 156-58, 1073, 516 P.2d 1076 authority no to that the has (1973) (discussing similar error-correction pay such reimburse employer order an authority in that state’s compen- rather, Fund; directly system). sation interpreting Cases rule remedy through the docket only Fund’s is 60(a) 35-1-59. may ing procedure specified be section elaborating referred to on Ann. Utah Code authority. Commission’s 1980); (Utah Rekward In v. respect P.2d 395 611 be must made 7. final observation App. In its power clerical errors. dustrial to correct to the brief, 24(c) (formerly R.App. pointed has out reply ALT, Paulsen R.Utah S.Ct. request, Further, amended 24(c)). the Fund's at of the entire our review P. op- providing an notifying has, fact, Paulsen or without рortunity persuades us that Paulsen record respond and that Paulsen every signifi ample opportunity to contest procedural process. We been denied thus observe, We do how issue case. cant ever, in this regarding proce- reach this do not recently section not raised because dures followed and, amended, clearly requires that notice as Commis- for review before the the motiоn either hearing provided when an order is a and opening brief before or in Paulsen’s sion 35-1-78(1) (1988). §Ann. amended. Utah Code Bank, Zions Nat'l Romrell v. First Court. See to the the amount that the Commission counters The Fund 35-1- section simply predi- relies on All that is and of the award. power has such to the provides that 107(3). section establishing That cate for the Default on behalf paid benefits has extent the liability, the Commission is Fund’s which has subrogation, “by employer, [it] of an clearly authorized statute to do. But and benefits powers, rights, all the has no to award the the Commission employer.” Utah employee ... subrogation rights against unin- (Interim Supp. 35-1-107(3) employer or to hold the sured provision argues that 1984). Fund. Even if that were the authorizing the as interpreted should be intent, statutory it has no Commission’s for direct an order enter do that. The authority whatsoever because reimbursement right subrogаtion against Fund’s stands, right to have has stead whose in a employer ought to be established court the Commission Commission, espe- not directly to the cially by the so-called correction of a not Although policy as matter of find we error.” “clerical argument appealing, the stat- the Fund’s susceptible interpreta- utes are not Rather, argues.
tion for which the Fund statutory conclude that the Fund’s sole
we
remedy is to under section 35-1-59 and docket the district court an abstract RAMON, By Through his Jaime determining liability. of the order RAMON, guardian litem ad Jose argu- remaining have considered Ramon, as Ramon and Alicia Jose M. merit. without find them to be ments and minor, parents of said individuals and motion to vacate Appellants, Plaintiffs and denied, and the order entirety is in its portion respect affirmed with Paulsen is liable clarifies that which FARR, Hospital, Boyd Benedict's J. St. Pаulsen has employee, that corporation, Does I and John/Jane has Paul- employee, that X, Appellees. Defendants stead, Fund is therefore and that the sen’s rights employee’s subrogated No. 20481. portion of the order against Paulsen. Supreme of Utah. Court Paulsen to purports to order
which is va- directly to the Fund reimbursement Feb. 1989. proceed against may now The Fund cated. Rehearing Denied Feb. 35-1-59. provided in section Paulsen *7 C.J., HOWE, HALL, C.J., Associate DURHAM, J., concur.
STEWART, (dissenting): Justice view, my has no au- employer lia-
thority to hold an uninsured That to the Default Fund.
ble only in a district
liability can be established findings of fact
court. Commission’s that “the of law establish
and conclusions position
employer was in no compensation benefits
medical bills or the and that those
due” the worker obligation of the em-
expenses were the
ployer. The also established Default Fund was liable