Thomas v. Color Country ManagementThomas v. Color Country Management
Lead Opinion
¶ 1 In this case, we consider whether an order from an administrative law judge to an employer to initiate subsistence payments for an injured employee is enforceable before the administrative decision-making process has reached its end. Nellie Thomas, an employee of Color Country Management (“Color Country”), was injured in the course of her employment, and an administrative law judge for the Utah Labor Commission (“Commission”) made an initial finding that she qualified for permanent total disability compensation. When Color Country refused to comply with the administrative law judge’s accompanying order to initiate temporary subsistence payments, Thomas sought to enforce the order by obtaining an abstract of her award from the administrative law judge and filing it in the district court pursuant to section 34A-2-212 of the Utah Labor Code. The enforcement of the abstract was stayed by the district court while Color Country challenged the issuance of the abstract first before the administrative law judge, who held that he had properly issued the abstract, and later before the Commission’s Appeals Board (“Appeals Board”), which did not address the challenge because Color Country had already appealed to the court of appeals. The court of appeals held that the order to initiate subsistence payments was .not a “final order” and that, consequently, the abstract of Thomas’s award was improperly issued by the administrative law judge.- Because the plain language of section 34A-2-413 provides that the initial finding of permanent total disability, upon which the subsistence payments in this case were predicated, is not final, we affirm.
BACKGROUND
¶ 2 On October 15, 1994, in the course of her employment at Sizzler Restaurant, Nellie Thomas slipped in a puddle of greasy water and fell, breaking her left arm and injuring her shoulder. Over the next three years, Thomas underwent four separate surgeries but never fully recovered the use of her arm. On May 15,1997, Thomas filed an application for a hearing with the Commission, claiming entitlement to permanent total disability benefits under the Utah Workers’ Compensation Act. See
¶ 3 In the following months, Thomas underwent an examination by a doctor, who
¶ 4 Color Country prepared and submitted a reemployment plan but refused to make the ordered subsistence payments. On May 1, 2000, Thomas requested that the administrative law judge issue an abstract of her award that she could file with the district court in order to effect enforcement of the subsistence payments. A week later, Color Country filed an objection to the proposed request with the administrative law judge, arguing that, according to the statute, abstracts could only be issued for final orders, and that the order to initiate subsistence payments was not a final order.
¶ 5 On May 18, 2000, the administrative law judge held that the order based on the initial finding of permanent total disability “constituted a final order with respect to that particular issue.” Thereafter, the administrative law judge reviewed the reemployment activities that had followed the initial finding of permanent total disability and issued a comprehensive final order for the case on June 14, 2000. He held that Thomas was permanently totally disabled and ordered that Color Country pay her permanent total disability compensation covering the period from August 16, 1996, to August. 16, 2002, at which point the compensation would continue at a modified rate.
¶ 6 The following month, Color Country filed two motions requesting that the Commission’s Appeals Board review the administrative law judge’s ruling regarding issuance of the abstract of Thomas’s award and his comprehensive decision of June 14, 2000. The Appeals Board issued its ruling on October 31, 2000, essentially affirming the comprehensive findings of the administrative law judge without addressing the propriety of the issuance of the abstract of award. Color Country then filed a petition for review with the Utah Court of Appeals challenging both the final finding and the issuance of the abstract of Thomas’s award. Additionally, it again requested that the Appeals Board issue a decision regarding the issuance of the abstract. On January 11, 2001, the Appeals Board notified Color Country that its appeal to the court of appeals “subsume[d] the issue” and refused to issue a decision on the matter. On December 6, 2001, the court of appeals affirmed the decision of the Appeals Board regarding the legality and propriety of the comprehensive, and final, findings of the administrative law judge. Color Country Mgmt. v. Labor Comm’n,
¶ 7 After the court of appeals issued its ruling, Thomas petitioned this court for a writ of certiorari,'which we granted. Thomas’s petition challenges only the final portion of the court of appeals’ decision, concerning the propriety of issuing an abstract of the initial award of permanent total disability compensation. We have jurisdiction to review the court of appeals’ decision pursuant to Utah Code section 78 — 2—2(3)(a).
¶8 In her petition, Thomas argues that the administrative law judge appropriately issued an abstract of her award for interim or tentative permanent total disability payments because the award was a final order as to the payments required to be made during the interim period between the initial and final finding. Color Country argues that we should uphold the court of appeals’ determination that this interim award was not final and that the administrative law judge improperly issued an abstract of Thomas’s award. Color Country further argues, however, that because the court of appeals’ ruling has rendered “[section] 34A-2-413 unworkable,” we should, for the benefit of future cases, hold that, as a general matter, tentative awards-of permanent total disability ordered pursuant to section 34A-2-413 are nevertheless final both for purposes of appeal and enforcement, i.e., issuance of an abstract, “once all appeals have been exhausted.” In order to address these concerns, we will examine the language of several statutes that govern these issues.
I. STANDARD OF REVIEW .
II9 On certiorari, we review the decision of the court of appeals for correctness, giving the court of appeals’ conclusions of law no deference. Grand County v. Rogers,
II. SECTION 34A-2-212: ABSTRACT OF FINAL ORDERS
¶ 10 “Ordinarily, an award of benefits is paid by a workers’ compensation carrier without resort to judicial machinery.” Stokes v. Flanders,
¶ 12 In their arguments regarding the meaning of “final order” in
(1) Has administrative decision-making reached a stage where judicial review will not disrupt the orderly process of adjudication?;
(2) Have rights or obligations been determined or will legal consequences flow from the agency action?; and
(3) Is the agency action, in whole or in part, not preliminary, preparatory, procedural, or intermediate with regard to subsequent agency action?
Id. These considerations aid us in determining whether “[ajgency actions that meet the foregoing test are appealable.” Id.
¶ 13 However, the parties’ reliance on Union Pacific is misplaced. We formulated the Union Pacific test to determine what constitutes a “final agency action” for purposes of judicial review as provided by the Utah Administrative Procedures Act. See
¶ 14 Although the Utah Administrative Procedures Act grants jurisdiction to the appellate courts over “final agency actions,” it “does not specifically define” this term. Barker v. Utah Pub. Serv. Comm’n,
¶ 15 Although the Union Pacific test does not apply to determining what constitutes a “final order” for which an abstract may issue under the Workers’ Compensation Act, Union Pacific continues to be the standard by which “final administrative action” will be judged for the purpose of judicial review. To determine whether Thomas’s award was final within the context of the Workers’ Compensation Act for purposes of enforcing an abstract of award, however, we look to the plain language of the statute.
III. SECTIONS 34A-1-303 AND 34A-2-801
¶ 17 Sections 34A-1-303 and 34A-2-801 set forth a broad definition of the term “final order.” Specifically, section 34A-1-303 of the Utah Labor Code states that “[a] decision entered by an administrative law judge under this title is the final order of the commission unless a further appeal is initb ated.”
¶ 18 Section 34A-2-801 reaffirms this statutory definition of a “final order”, stating that “[ujnless a party in interest appeals the decision of an administrative law judge ..., the decision of an administrative law judge ... is a final order of the commission 30 days after the date the decision is issued.” Id. § 34A-2-801(2) (emphasis added). If a party in interest does not pursue further administrative review through the procedure outlined in this section, the decision of the administrative law judge becomes final. Id. § 34A-2-80K2), (3).
¶ 19 While the definition of what constitutes a final order in these two sections is very broad, there is also an express limitation on what constitutes a final order included in section 34A-2^tl3 of the Workers’ Compensation Act. Section 34A-2-413(6)(a) specifically states that initial findings of permanent total disability are not final. Thomas’s award is based on this more specific section. Because “our rules of statutory construction provide that ‘when two statutory provisions conflict in their operation, the provision more specific in application governs over the more general provision,’ ” Taghipour v. Jerez,
IV. SECTION 34A-2-413: PERMANENT TOTAL DISABILITY
A. Procedure Outlined in Section 34.A-2-j.13
¶ 20 Injured employees seeking permanent total disability compensation for work-related injuries must show by a preponderance of the evidence that they have become permanently totally disabled as a result of an industrial accident or [occupational disease.
¶21
¶ 22 Even though the initial finding is expressly made not final by statute,
¶23 If the employer refuses to comply with a subsistence payment order from the administrative law judge, the employee’s only apparent means of enforcement is to request that the administrative law judge issue an abstract of this interim award that can then be filed with the district court. However, to obtain the abstract from the administrative law judge, the subsistence payment order must be a final order. Therefore, even though initial findings are not final orders, we must determine whether the section 34A-2 — 413(6)(b)(i) order to initiate subsistence payments, which is predicated on this non-final finding, qualifies, for the purpose of issuing an abstract under
B. A Section SJiA-2-fl3(6)(b)(i) Order Is Not a “Final Order”
¶ 24 A
¶ 25 Because initial findings are not final orders, subsistence payment orders predicated upon initial findings also are not final orders. Before becoming final, the initial finding may be modified as a result of the employee’s rehabilitation or reemployment.
¶ 26 Our conclusion does not alter the directive in
CONCLUSION
¶ 27
Notes
. Beginning August 16, 2002, Color Country’s compensation payments would continue at either the permanent total disability weekly compensation rate or "36% of tire state average weekly wage, whichever [was] greater, reduced by 50% of any Social Security retirement benefits” that Thomas was receiving.
. It appears that the question of whether the abstract of Thomas's award was properly issued is moot. Because the administrative law judge made a second, and final determination, on June 14, 2000, that Thomas was permanently totally disabled and ordered Color Country to pay permanent total disability compensation commencing from the time of her injury, an abstract of that final order could properly issue. Accordingly, any argument made by Thomas that her abstract award should be evaluated using section 35-1-59, the section governing abstracts of awards that existed at the time of her injury, as opposed to the later amended
Notwithstanding the apparent mootness of the issue, however, we have discretion' to address whether the first abstract in this case was properly issued under Utah Code
. We note that Color Country also argues that the tentative order the administrative law judge issued to initiate permanent total disability payments lacked the mandatory language that provides notice of the parties' rights to administrative or judicial review as required by section 63-46b-10(l) of the Utah Code.
. According to section 78-2a-3(2)(a), the court of appeals has original appellate jurisdiction over the proceedings of the Commission in this case. See
. We note that the legislature amended
. "When an employee has been rehabilitated or the employee’s rehabilitation is possible but the employee has some loss of bodily function, the award shall be for permanent partial disability.”
Concurrence Opinion
concurring:
¶ 29 I write separately to discuss an issue alluded to in footnote two of the majority opinion. In that footnote, we state that “any argument made by Thomas that her abstract of award should be evaluated using section 35-1-59, the section governing abstracts of awards that existed at the time of her injury, as opposed to the later amended
¶ 30 We recognize an exception to the general prohibition on retroactive application of statutes. A statutory amendment that does not “ ‘enlarge, eliminate, or destroy”’ substantive rights is not substantive, and can therefore be applied retroactively. Moore v. Am. Coal Co.,
¶31 First, the Utah Code provides that “[n]o part of these revised statutes is retroactive, unless expressly so declared.”
¶32 Superimposed on this foundational rule against retroactive application is a second general rule for workers’ compensation cases in particular: The parties’ rights in such cases are controlled by the law as it stood on the day of the accident. Moore,
¶ 33 One exception to the general rule against retroactive application of laws in workers’ compensation cases is the “procedural” exception. According to this exception, amendments that merely alter the procedure by which substantive rights are adjudicated are retroactively applicable. The rule is simple enough to articulate, but it is much more difficult to determine whether a statutory change is procedural rather than substantive. We have differentiated “procedural” from “substantive” statutes in varying ways. As we said in Moore, an amendment is not substantive if it does not “ ‘enlarge, eliminate, or destroy’ ” substantive rights.
¶ 34 Significantly, “convenience and reasonableness are properly considered in determining whether legislation is remedial or procedural.” Moore,
¶35 While we have not, in the past, expressly aligned Utah law with federal court pronouncements on retroactive application of statutory amendments, the federal rule is entirely sound. “Retroactivity is not favored in the law.” Bowen v. Georgetown Univ. Hosp.,
¶ 36 As we use all these factors to analyze whether a given amendment enlarges, eliminates, or destroys substantive rights, however, we must keep in mind that the procedural exception to the general rule against retroac-tivity is “narrow.” J.P.,
¶ 37 The statutory provision at issue in Martin v. Hadix involved the amount of attorney fees that courts can award to attorneys who successfully litigate prisoner lawsuits.
¶ 38 The petitioners in Martin argued that the PLRA’s attorney fee provision should be retroactively applicable, “because fees questions are incidental to, and independent from, the underlying substantive cause of action. They do not, in other words, change the substantive obligations of the parties because they are collateral to the main cause of action.” Id. at 359,
Attaching the label “collateral” to attorney’s fee questions does not advance the retroactivity inquiry, however. While it may be possible to generalize about types of rules that ordinarily will not raise retro-activity concerns, these generalizations do not end the inquiry. For example, in Landgrafwe acknowledged that procedural rules may often be applied to pending suits with no retroactivity problems, but we also cautioned that the mere fact that a new rule is procedural does not mean that it applies to every pending case. We took pains to dispel the suggestion that concerns about retroactivity have no application to procedural rules. When determining whether a new statute operates retroactively, it is not enough to attach a label (e.g., “procedural,” “collateral”) to the statute; we must ask whether the statute operates retroactively.
Id. (internal quotations and citations omitted) (emphasis added). Therefore, the Martin Court looked beyond the PLRA’s superficial procedural character. Applying “a common sense, functional judgment” that was “guided by familiar considerations of fair notice, reasonable reliance, and settled expectations,” id. at 357-58,
¶39 If the retroactivity issue were not moot, this case would, like Martin, demand that we use our “common sense, functional judgment” to decide whether to impose the final- order requirement of Utah Code
¶40 The new final order requirement, however, directly conflicts with this legislative mandate. “The statutes of this state require the courts to give legislative enactments a liberal construction, with a view to effectuate the purpose sought by the Legislature.” Utah Copper Co. v. Indus. Comm’n of Utah,
¶41 Examining this case in light of the “convenience, reasonableness and justice” factors that we articulated in Moore, Docutel Olivetti, and Boucofski reinforces my conclusion. The majority acknowledges that its interpretation of the amendment creates a “problem” with
¶ 42 We have previously held that it would be improper to apply statutory amendments retroactively, even when those amendments seemingly implicated mere procedure. We have found, for example, that an amendment that alters the notice requirements of the Governmental Immunity Act is substantive. The plaintiff in Schultz v. Conger,
¶43 The amendment at issue in Schultz was similar to the one at issue in this case because it did not, on its face, appear to “enlarge, eliminate, or destroy” the plaintiffs substantive right to sue a government employee. It did not, for example, create or abolish any causes of action that a plaintiff might have against government employees acting within the scope of their employment. It did not raise or lower any of the evidentia-ry burdens that a plaintiff must bear to state a claim against a government employee. It simply imposed a requirement that a plaintiff file a notice of claim “with the governing body of the political subdivision within one year- after the claim arises.”'
¶ 44 Utah courts have also been quite willing to reject interpretations of the Workers’ Compensation Act that would allow employers to avoid their payment obligations “in direct contravention to the larger purpose and spirit of the Workers’ Compensation Act.” Color Country Mgmt. v. Labor Comm’n,
¶ 45 In other contexts as well, Utah appellate courts have refused to impose upon innocent litigants a statutory interpretation granting them a right, but at the same time render that right “meaningless or illusory.” For example, the Utah legislature has given parents the statutory right to representation by counsel at every stage of a custody termination proceeding, including the court-appointment of counsel for indigent parents.
Although this section does not expressly state that counsel must be effective, the statute would be meaningless or illusory if it guaranteed only ineffective assistance of counsel. The legislature’s omission of “effective” should not be read to suggest an intent to provide only ineffective assistance of counsel.
State ex rel. E.H.,
¶ 46 Our rejection of statutory interpretations that render statutory rights “worthless and of no material benefit” or “meaningless or illusory” is consistent with the rule that we consider factors such as convenience, reasonableness, and justice in determining the procedural or substantive character of statutes. It is also consistent with the United States Supreme Court’s dictate that courts should use a “common sense, functional” approach to determine whether a law should be applied retroactively.
¶48 I would concede that if, following a statutory amendment, the party holding a right can still enforce that right in some meaningful, albeit different way, then retro-activity is acceptable. That is not what we confront with the change from
. Although the statutory amendment adding the "final order” requirement became effective on July 1, 1997 and the statute of limitations for workers' compensation cases is generally six years, see
. I note that the law at issue in Schooner Peggy was different from the "final order” statutory amendment in this case, because the Schooner Peggy law — a treaty — expressly stated that it was to be applied retroactively. See 5 U.S. (lCranch) at 108 (basing holding on fact that new treaty expressly applied to property that was not "defln-itively condemned” at the time the treaty was signed). This distinction does not diminish the importance of the principle that we should "struggle hard" against construing statutory amendments as retroactively applicable when those amendments affect litigants' substantive rights.
. Prior lo the amendment,
A claim against a political subdivision or against its employee for an act or omission occurring during the performance of his duties, within the scope of employment, or under color of authority, is barred unless notice of claim is filed with the governing body of the political subdivision within one year after the claim arises, or before the expiration of any extension of time granted under Subsection 63-30-11(4).
The only significant change that the amendment made was to add this phrase onto the end of the section: "regardless of whether or not the func-
Concurrence Opinion
concurring:
¶ 49 I concur in the opinion of the Associate Chief Justice and write separately out of apprehension that the failure of the Chief Justice’s concurrence to assemble a majority may betray her cause to clarify our jurisprudence concerning the retroactive application of statutes by carrying the inference that we take issue with her analysis. I do not. To the contrary, I endorse her proposed methodology for taking on issues of retroactive statutory application. Moreover, I agree that the identification of the elements of that methodology is an “important question.” It is not, however, a question that demands an answer in this case. Therefore, while I would be inclined to join the Chief Justice under other circumstances, because the status of Ms. Thomas’s abstract of award is moot, I decline to do so here.