Darden Restaurant v. Labor Commission

Opinions

Opinion

This opinion is subject to revision before final publication in the Pacific Reporter

2026 UT 32

IN THE

SUPREME COURT OF THE STATE OF UTAH

DARDEN RESTAURANT and XL INSURANCE AMERICA INC., Respondents,

v.

CHINYU JAMES SUN and UTAH LABOR COMMISSION, Petitioners.

No. 20250066

Heard January 28, 2026 Filed August 20, 2026*

On Certiorari to the Utah Court of Appeals

Utah Labor Commission

Case No. 21-0272

Attorneys:

Eric J. Pollart, Jeffrey A. Callister, Greenwood Village, Colo., for respondents

Aaron J. Prisbrey, St. George, for petitioner Chinyu James Sun Christopher C. Hill, Salt Lake City, for petitioner Utah Labor Commission

JUSTICE NIELSEN authored the opinion of the Court, in which JUSTICE PETERSEN, ASSOCIATE CHIEF JUSTICE POHLMAN, JUDGE SHAUGHNESSEY, and JUDGE CONKLIN joined.

Before this case was decided, CHIEF JUSTICE DURRANT recused himself from this case and JUSTICE HAGEN stepped down from the court before this case was decided. DISTRICT COURT JUDGE SHAUGHNESSY and DISTRICT COURT JUDGE CONKLIN, having

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* As of January 31, 2026, “The Supreme Court consists of seven

justices.” UTAH CODE § 78A-3-101(1). Pursuant to Utah Supreme Court Standing Order No. 18, this court sat and rendered judgment in this matter as a division of five justices.

Opinion of the Court

reviewed the briefs and listened to a recording of the oral argument, substituted for CHIEF JUSTICE DURRANT and JUSTICE HAGEN and participated fully in this decision.

JUSTICE JORGENSEN and JUSTICE DENT became members of the Court after oral argument in this matter and did not participate.

JUSTICE NIELSEN, opinion of the Court:

INTRODUCTION

¶1 Chinyu James Sun was working in the kitchen at a St. George Olive Garden one afternoon when he slipped and fell on some spilled ice, injuring his shoulder and neck. He filed a workers’ compensation claim but did not notify his employer (Darden) of his injuries within 180 days of the accident.

¶2 The Workers’ Compensation Act states that an employee injured at work “shall provide notification to the . . . employer . . . of the injury” “within . . . 180 days after the day on which the injury occurs.” UTAH CODE § 34A-2-407(2)(a), (3)(b)(i).1 Without this notice, the “employee is barred” from claiming “benefits arising from an injury.” Id. § 34A-2-407(3)(a). The court of appeals has held that this notice provision provides the equivalent of a statute of limitations defense, See Barnard & Burk Grp., Inc. v. Lab. Comm’n, 2005 UT App 401, ¶¶ 6, 10 & n.3, 122 P.3d 700, and the parties have treated it that way. A limitations defense is an affirmative defense that the defendant in a civil case bears the burden to prove. See, e.g., Salt Lake City Corp. v. Jordan River Restoration Network, 2018 UT 62, ¶ 60, 435 P.3d 179; Seale v. Gowans, 923 P.2d 1361, 1363 (Utah 1996).

¶3 In front of the administrative law judge (ALJ), Darden’s answer cited the notice provision, and its pretrial disclosure statement included it. But Darden did not move to dismiss the case for lack of pre-filing notice of injury. Though it presented evidence that a report was lacking, it used that evidence to argue not that it was reported late, but that there was no injury to report. Despite the lack of argument from Darden at the hearing that the late report

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1 The notice provision was amended in 2025, changing “of the

day” to “after the day.” See Workers’ Compensation Modifications, ch. 450, 2025 Utah Laws 2 (amending UTAH CODE § 34A-2-407) (S.B. 190). Because this change is not material for purposes of this case, we cite the current version of the statute for the reader’s convenience.

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alone justified dismissal, the ALJ dismissed both the shoulder and neck claims, ruling that Sun had not met his burden of showing a timely report.

¶4 On appeal to the Commissioner, Sun argued that the ALJ had reversed the burden on a limitations defense and that Darden had waived it by not asking for relief based on it. The Commissioner disagreed, ruling the defense was not waived.

¶5 After further administrative remand and appeals, the case made its way to the court of appeals, where Sun again argued that Darden had waived its limitations defense. But the court of appeals did not address waiver; instead, it interpreted Sun’s assertions as a preservation argument, which it rejected in a footnote. See Darden Rest. v. Sun, 2024 UT App 189, ¶ 16 n.3, 562 P.3d 769.

¶6 We hold here that Darden waived the issue of Sun’s noncompliance with the notice provision. And, consistent with our holding in Abu-Ulba v. Ananda Scientific, Inc., 2026 UT 24, -- P.3d --, we further conclude that the ALJ’s sua sponte ruling does not sufficiently serve the principles underlying preservation to overcome that waiver. See id. ¶ 38. We vacate the court of appeals’ opinion and remand to the court of appeals with instructions for further proceedings.

BACKGROUND2

A. Facts

¶7 Sun managed an Olive Garden restaurant in St. George owned by Darden. As the lunch crowd surged on July 1, 2020, Sun filled a plastic container in the kitchen with about thirty to fifty pounds of ice. As he turned around to carry the container across the kitchen, he slipped on some fallen ice. On the way down, he hit his right shoulder on the ice machine and his head on the wall. He tried to break his fall with his left arm while holding onto the ice bucket with his right arm, landing on his back on the ceramic tile floor with the ice bucket on his chest. The line cook and the dishwasher helped him to his feet. His whole upper body hurt, especially his right shoulder. Sun took some ibuprofen and finished his shift despite the pain.

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2 We view, and recite, the facts in workers’ compensation cases

“in the light most favorable to the Commission’s findings.” Gamez v. Utah Lab. Comm’n, 2022 UT 20, n.3, 511 P.3d 1145 (cleaned up).

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¶8 This was not the first time Sun had been injured at work. Before moving to Utah, he lived in Colorado, where he worked at a different Olive Garden location and also injured his shoulder. Before his Utah slip-and-fall, he had already scheduled shoulder surgery to deal with the Colorado injury.

¶9 When Sun told his doctor, Dr. Clark, of the Utah slip-andfall , Clark ordered an MRI of Sun’s right shoulder. The scan showed damage, which Clark performed surgery to repair in August 2020.

¶10 Sun returned to Clark in December 2020 with complaints of pain in both of his shoulders and in his neck. An updated MRI showed no shoulder injury, but it did show that his neck required surgery. In January 2021 (at the earliest, 185 days after the injury), Sun told his supervisor for the first time about a possible “overuse” injury to his opposite shoulder from the Colorado accident.

B. Procedural History

¶11 In April 2021, Sun filed an application for hearing on both his shoulder and neck injuries, which he claimed resulted from his Utah slip-and-fall. Darden’s answer denied that Sun sustained a compensable workplace injury. Darden also raised several affirmative defenses, including lack of timely notice (to the employer) and lack of timely filing (with the agency) under both the Workers’ Compensation Act and the Occupational Disease Act. See UTAH ADMIN. CODE R602-2-1(C)(2) (“The answer shall state all affirmative defenses with sufficient accuracy and detail that the petitioner and the Division may be fully informed of the nature and substance of the defenses asserted.”); cf. UTAH R. CIV. P. 9(i) (stating the need to plead statute of limitations defense by referencing applicable code section or otherwise “sufficiently” identifying it). In pretrial disclosures, Darden stated that it did “not believe the mechanism of injury [was] consistent with the injuries claimed.”

¶12 Leading up to the ALJ hearing, Darden stated that it intended to litigate the notice and/or timeliness issues, and at the hearing, both parties explored reporting (or lack thereof). Sun testified that he left his supervisor a voicemail on the day he fell: “I kinda fell today, kinda hurt my right shoulder. It really hurts.” Then, he spoke to her a couple of days after the accident, referencing his hurt shoulder: “It kind of hurts but I can suffer through, I can push it through.” And he said that when his supervisor visited the restaurant that week, he again told her about the injury: “My shoulder really hurts. I can’t even lift my arm.”

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Sun’s supervisor testified that Sun did not report the accident to her.

¶13 But Darden did not cite the notice statute or argue that the claim should be dismissed for lack of notice. Rather, Darden argued the lack of notice showed that the injury never happened.

¶14 Though no one addressed dismissal for lack of notice at the hearing, the ALJ reached the issue on her own. The relevant statute requires an injured worker to report a work-related injury to his employer within 180 days of “the day on which the injury occurs.” UTAH CODE § 34A-2-407(2)(a), (3)(b)(i). The ALJ believed that the earliest report day under the evidence that she heard was January 1, 2021, five days after the deadline as reckoned from the date of the accident. Believing that it was Sun’s burden to prove a timely report and that he had not met it on the existing evidence, the ALJ ruled his claims barred and dismissed them.

¶15 Sun appealed, arguing to the Commissioner that the ALJ “reversed the burden of proof on the affirmative defense” of lack of notice and that Darden waived the defense by not pleading it specifically enough or arguing for dismissal at the hearing on that basis.3 Darden responded that it had adequately pleaded the defense and that the evidence in front of the ALJ supported the lack-of-notice determination, but Darden did not respond to the argument that it waived the defense when it failed to pursue the defense at the hearing. Darden also believed that it had met its burden to show untimeliness, which then shifted the burden to Sun to prove timeliness or an exception.

¶16 The Commissioner rejected Sun’s waiver claim. He noted that the issue was adequately pleaded in Darden’s answer and that because the statute states that an untimely claim is barred, the ALJ could raise the issue on her own “to ensure fair and proper adjudication of the dispute.”

¶17 The Commissioner then addressed whether Sun timely reported his injuries, affirming on the shoulder injury, but reversing on the neck injury. He reasoned that because the notice statute “requires an injured worker to provide prompt notice of the injury—rather than the accident—from which the claim for benefits

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3A party may request that an appeal be heard either by a Commissioner or by the Commissioner’s Appeals Board. See UTAH CODE § 34A-1-303(2)(b)(i), (3)(i); id. § 34A-2-801(4)(b)–(c).

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arises,” the notice clock starts ticking only when a worker knows or should know enough to tie the injury to his work. Applying this standard, the Commissioner reasoned that because Sun knew that his shoulder hurt after the July 2020 fall, and the preponderance of the evidence showed no report until April 2021, that claim was barred. But because the neck injury was not noticeable until the shoulder injury was addressed, it was not causally connected to the July 2020 fall until December 2020 (or at the latest February 2021). The Commissioner thus deemed the April 2021 report of that injury timely.

¶18 On remand from the Commissioner, the ALJ addressed the neck injury and concluded that, because medical experts disagreed on whether the injury was related to the July 2020 fall, a medical panel should be convened. The medical panel concluded that Sun’s neck injury was “likely impacted” by his July 2020 fall. The ALJ accepted the medical panel’s report (over Darden’s objection) and awarded Sun benefits for his neck injury.

¶19 Sun again appealed to the Commissioner, arguing that the ALJ should not have limited the benefits to his neck injury and reiterating his waiver argument on the shoulder injury. Darden appealed to the Appeals Board, arguing that the ALJ should have awarded no benefits at all because the medical panel’s findings were unsupported.

¶20 The Appeals Board heard both appeals and affirmed the ALJ’s decision. See UTAH CODE § 34A-1-303(2)(c)(i) (stating that the Appeals Board “shall hear the review” if “a party in interest to the appeal requests that the appeal be heard by the Appeals Board”). On Darden’s appeal, the Board held that the ALJ correctly admitted and relied on the medical panel report. On Sun’s appeal, the Board clarified that the ALJ did not limit benefits for the neck injury and that the Commissioner correctly decided the notice issue and rightly dismissed the shoulder claim.

¶21 Both parties appealed to the court of appeals. Sun argued, in part, that Darden waived its limitations defense by not properly raising and proving it.

¶22 The question Sun raised below was whether a limitations defense could also be waived by a later failure to pursue and prove it. But the court of appeals did not address that question; instead, it interpreted Sun’s assertion as a preservation argument, which it rejected in a footnote. See Darden Rest. v. Sun, 2024 UT App 189, ¶ 16 n.3. Because “the ALJ issued a ruling on this specific issue and Sun

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appealed that ruling to the Board, which also issued a decision” on it, the court of appeals satisfied itself that the issue was preserved and went on to address the merits. Id.

¶23 On the merits, the court of appeals first held that the Commissioner had erred by applying a knew-or-should-haveknown standard to toll the notice provision. Id. ¶¶ 19–21 & n.4. The court of appeals reasoned that because the notice statute could not be tolled, and Sun did not dispute the ALJ’s credibility findings on the lack of a timely report, both the shoulder and the neck injuries were time-barred. Id. ¶¶ 23–24. Because it resolved the case entirely on this time-bar, the court of appeals explicitly declined to reach Darden’s separate merits challenges regarding the admission of the medical panel report and the finding of medical causation. See id.

¶ 15 n.2.

¶24 We granted Sun’s petition for certiorari and now reverse.

ISSUES AND STANDARD OF REVIEW

¶25 Sun raises several issues on appeal, but we need address only two: whether the court of appeals erred by not addressing whether Darden waived a limitations defense, and whether the ALJ’s sua sponte addressing the issue preserved it for appeal.

¶26 On certiorari review, we review the decision of the court of appeals, not the lower tribunals. Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997). Despite Sun’s raising the waiver issue in the court of appeals, that court did not address it. Because there is no decision to review on this issue, no standard of review applies. See, e.g., Vote Solar v. Pub. Serv. Comm’n, 2023 UT 13, ¶ 22, 532 P.3d 981 (explaining that when an appellate court decides an issue in the first instance, with “no ruling to review, . . . no standard of review applies”). The court of appeals did address preservation, however. That presents a legal question we review for correctness. Abu-Ulba v. Ananda Scientific, Inc., 2026 UT 24, ¶ 20, -- P.3d --.

ANALYSIS

¶27 The ALJ, the Commissioner, the Appeals Board, and the court of appeals all granted Darden relief—to a greater or lesser extent—based on the notice statute (Notice Requirement). See UTAH CODE § 34A-2-407(2), (3). But Darden didn’t ask the ALJ for any relief based on lack of notice—it argued that the lack of notice showed that the injury never happened. Sun argues that by pursuing this litigation strategy, Darden waived the limitations

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defense, and that the ALJ’s sua sponte ruling does not necessarily preserve the issue. We agree.

¶28 We first analyze waiver. A party asserting an affirmative defense must “expressly plead[] and prove[]” it. Beehive Tel. Co. v. Pub. Serv. Comm’n, 2004 UT 18, ¶ 52, 89 P.3d 131. It is well established that a limitations defense can be waived by failure to adequately plead it. See, e.g., Brown & Root Indus. Serv. v. Indus. Comm’n, 947 P.2d 671, 677 (Utah 1997) (holding that statute of limitations defense was waived in administrative proceedings by not properly raising it in an answer); see UTAH ADMIN. CODE R602- 2-1(C)(2) (stating need to plead affirmative defenses in answer with “sufficient accuracy” to give notice to petitioner and division); cf. UTAH R. CIV. P. 12(h) (“A party waives all defenses and objections not presented either by motion or by answer or reply” except in circumstances not applicable here.). A limitations defense can also be waived by not providing any evidence of it. See Barnard & Burk Grp., Inc. v. Lab. Comm’n, 2005 UT App 401, ¶ 13, 122 P.3d 700. The question in this case is whether it can be waived by not asking for relief based on it, even if it was pleaded and evidence existed to support it. We hold that it can.4

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4 The reader may wonder why not pursuing and proving a

limitations defense would be called a waiver rather than a forfeiture. Courts—including us—have not always been careful to distinguish the two, at times using the terms interchangeably. See In re Adoption of Baby E.Z., 2011 UT 38, ¶ 51 n.1, 266 P.3d 702 (Lee, J., concurring). Generally, waiver is the “knowing, voluntary relinquishment of a known right,” while forfeiture is the “loss of a right by mere failure to assert it.” Id. (cleaned up). Waiver, unlike forfeiture, can be fact-intensive. See IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2003 UT 5, ¶ 7, 73 P.3d 320 (“Waiver is an intensely fact dependent question . . . .”). But sometimes waiver takes place by mere non-assertion. For example, issues not raised at trial or on appeal are considered waived. See State v. Johnson, 2017 UT 76, ¶ 40, 416 P.3d 443 (criminal cases); 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (civil cases); Esquivel v. Labor Comm’n, 2000 UT 66, ¶ 34, 7 P.3d 777 (administrative cases). But even this is sometimes called forfeiture. See Taylor v. Univ. of Utah, 2020 UT 21,

¶ 50 & n.10, 466 P.3d 124 (using term “forfeit” rather than “waive” when addressing appellants’ failure to raise issue in opening brief); State v. Johnson, 2017 UT 76, ¶ 71, 416 P.3d 443 (Lee, J., concurring)

(continued . . .)

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¶29 Though Darden pleaded a limitations defense in its answer and adduced evidence at the hearing that could have supported that defense, it did not prove a limitations defense because it failed to ask for any relief based on the notice statute. What it sought to prove instead with the lack-of-report evidence was that there were no injuries to report. That is, Darden addressed the merits of Sun’s claim rather than its own defense. While the pieces of a limitations defense were there, Darden did not ask the ALJ to assemble them in that way; the ALJ did that on her own.5 In doing so, the ALJ stepped into the role of advocate rather than arbiter. In our adversary system, the parties—not the court—decide which claims and defenses to pursue, forgo, raise, or abandon. See State v. Johnson, 2017 UT 76, ¶¶ 74–75, 416 P.3d 443 (Lee, J., concurring). Darden knew about the limitations defense, but chose not to seek relief based on it. It thus waived the defense.

¶30 The next question is whether the ALJ’s sua sponte ruling on that defense preserved the issue. We hold that it did not.

¶31 We recently addressed a similar scenario—the preservation doctrine’s application to a court’s sua sponte ruling— in Abu-Ulba v. Ananda Scientific, Inc., 2026 UT 24, -- P.3d --. There, Abu-Ulba agreed to work for Ananda under a reduced salary in exchange for shares in the company. Id. ¶¶ 7–8. When he found out that Ananda had materially misrepresented the company’s value,

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(citing waiver case law but stating that failure to raise issue “amounts to forfeiture”). Sigh. But here, it is clear that Darden knew about the defense (it pleaded it) and it declined to seek relief based on it. That is a waiver.

5 We note that we are deciding this issue as the parties have

presented it—as a statute of limitations. But in a future case, the issues may be presented differently. Unlike the court of appeals, we have never decided whether the notice provision is a statute of limitations. It may be that. Or it may be something else—like a jurisdictional provision or a claims-processing rule. See Kontrick v. Ryan, 540 U.S. 443, 455–46 (2004) (discussing the difference between jurisdictional and claims-processing rules). The difference can matter because statutes of limitation and claims-processing rules are waivable, but jurisdictional provisions are not. And jurisdictional provisions can be raised by the court on its own motion without running afoul of the adversary nature of the proceedings.

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he sued it for securities fraud. Id. ¶ 10. After prevailing on that claim, he asked for damages to compensate him for the value of his work but did not offer a theory of how to calculate them. Id. ¶ 12. The district court considered several options, including the price of the stock that Abu-Ulba had received (Note Theory). Id. ¶¶ 12–14. Because it considered the evidence of the stock price to be speculative, it rejected that theory. Id. ¶ 13. It then awarded Abu- Ulba the amount of his under-compensation (what he was worth minus what he had been paid). Id. ¶ 14.

¶32 Abu-Ulba appealed, arguing that his compensation ought to have been based on the Note Theory. Id. ¶ 16. He asserted that this argument was preserved by the district court’s ruling considering and rejecting this theory. Id. The court of appeals held that the Note Theory was unpreserved and affirmed on that basis. See Abu-Ulba v. Ananda Sci., Inc., 2024 UT App 64, ¶¶ 36–39, 550 P.3d 480.

¶33 Abu-Ulba sought review in this court, and we affirmed.

Abu-Ulba, 2026 UT 24, ¶ 38. But we reasoned that when a “district court decides to take up an issue and that review satisfies the underlying preservation principles of judicial economy and fairness, then that issue may be preserved.” Id. ¶ 28. We decided there that the court’s sua sponte ruling served neither of these interests. Id. ¶ 21. First, the ruling failed to serve judicial economy because the court’s analysis of the Note Theory consisted of saying the theory was too speculative and lacked evidence. Id. ¶¶ 32–34. And second, it failed to serve notions of fairness because the ruling was not supported by sufficient analysis or party arguments, leaving Ananda with “no reason to understand the Note Theory as a live damages theory requiring objection.” Id. ¶ 37.

¶34 The question under Abu-Ulba is whether, despite Darden’s waiver, the ALJ’s sua sponte ruling sufficiently preserved the Notice Requirement issue. UTAH CODE § 34A-2-407(2)(a), (3)(b)(i). As we said in Abu-Ulba, “the paramount considerations underlying the doctrine of preservation are the principles of judicial economy and fairness.” Abu-Ulba, 2026 UT 24, ¶ 23 (cleaned up).6 And both must be satisfied for a sua sponte ruling to preserve an issue. Id.

¶ 28.

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6 Because Abu-Ulba had not come out at the time the court of

appeals decided preservation here, it understandably did not analyze the issue as we do now.

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¶35 “Judicial economy conveys our goal of alleviating the heavy burden on appellate courts, by encouraging parties to resolve their controversies at the trial level, and allowing the trial judge to correct errors at the trial level.” Id. (cleaned up). For example, “requiring a party to raise an issue or argument in the trial court gives the trial court an opportunity to address the claimed error, and if appropriate, correct it. This helps to avoid retrials and appeals by addressing issues in the first instance.” Id. ¶ 30 (cleaned up). Also, “it encourages a party to present his entire case and his theory of recovery to the trial court.” Id. (cleaned up). Notably, “preservation should be more strictly applied when the asserted issue depends on factual questions whose relevance thereto was not made to appear at trial.” Id. (cleaned up).

¶36 Here, the ALJ had the opportunity to address the Notice Requirement—she ruled on it. And some factual predicates required to show timely notice were discussed during trial. For example, Sun testified at trial that he told his supervisor about his slip-and-fall and shoulder injury in three separate instances within a week of the accident. First, he said he left her a voicemail on the day he fell: “I kinda fell today, kinda hurt my right shoulder. It really hurts.” Then, he spoke to her a couple of days after the accident: “It kind of hurts but I can suffer through, I can push it through,” referencing his shoulder pain. And he said that when she visited the restaurant that week, he again told her about his injury: “My shoulder really hurts. I can’t even lift my arm.” In contrast, Sun’s supervisor testified that Sun did not report the accident to her. Thus, it is possible that such a record could serve judicial economy insofar as it developed factual predicates for a Notice Requirement defense.

¶37 But even if judicial economy is served here, allowing Darden to pursue a new theory on appeal does not encourage parties to present their entire theory of recovery at the ALJ, undermining fairness. “Fairness requires giving the adverse party an opportunity to overcome an objection in the [lower] court and, by extension, be prepared to rebut or defend the issue in an appellate court.” Abu-Ulba, 2026 UT 24, ¶ 23. It “focus[es] on giving parties an opportunity to address the alleged error at the district court level” and seeks “to avoid a party having to defend an issue on appeal that they had no opportunity to address at trial.” Id. ¶ 35. And it “works to prevent a party from avoiding the issue at trial for strategic reasons only to raise the issue on appeal if the strategy fails.” Id. (cleaned up).

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¶38 Here, Sun was aware that notice was at issue for one purpose—to the extent that notice proved (or failed to prove) an accident occurred—and took the opportunity to argue that he did provide timely notice, as discussed above. But Darden did not present argument under the Notice Requirement to the ALJ despite having ample opportunity to do so—arguing lack of timely notice only to prove that no accident occurred. Thus, Sun had no reason to know he needed to introduce evidence and argument of compliance with the Notice Requirement specifically. It does not serve notions of fairness to allow Darden to pursue one theory before the ALJ and then abandon that failed theory in favor of a new theory later.

CONCLUSION

¶39 Darden waived a limitations defense by not asking for relief based on it. And under our recently clarified analysis of the preservation doctrine’s application to sua sponte rulings, we hold that the ALJ’s decision here failed to serve the preservation rule’s underlying principle of fairness. We thus vacate the court of appeals’ opinion. Because the court of appeals dismissed the case strictly on the time-bar issue, it bypassed Darden’s merits challenges to the neck injury claim—specifically, Darden’s arguments that the Appeals Board erred in finding medical causation and abused the Appeals Board’s discretion by refusing to exclude the medical panel’s report. See Darden Rest. v. Sun, 2024 UT App 189, ¶ 15 n.2, 562 P.3d 769.

¶40 Accordingly, we remand to the court of appeals to address these unadjudicated challenges. Unlike the neck claim, however, a procedural time bar prevented any merits adjudication of the shoulder injury. When an agency has not considered all relevant factors, the proper course is to remand to the agency. See UTAH CODE § 63G-4-404(1)(b)(v) (authorizing the appellate court to “remand the matter to the agency for further proceedings”). Thus, we further instruct the court of appeals, once it resolves the neckinjury issues, to remand the matter to the Labor Commission to address the merits of the shoulder injury and, if needed, other issues arising from the court of appeals’ resolution of the neck claims.

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