Thomas v. Color Country Management

2004 UT 12, 84 P.3d 1201, 492 Utah Adv. Rep. 9, 2004 Utah LEXIS 11, 2004 WL 178618

• Court: Utah Supreme Court
• Decided: January 30, 2004
• Docket: 20020091
• Status: Published

Opinions

DURRANT, Associate Chief Justice:

¶ 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 Utah Code Ann. §§ 34A-2-101 to - 803 (2001). An administrative law judge heard her case on January 6, 1998. On January 8,1998, the administrative law judge determined that Thomas was temporarily totally disabled and ordered that the issue of permanent total disability be held in reserve until her medical condition stabilized.

¶ 3 In the following months, Thomas underwent an examination by a doctor, who found that she had reached medical stability and would not recover any further use of her arm. Color Country then requested that the administrative law judge reconsider the issue of permanent total disability, and on August 11,1998, the judge determined that, based on her recent medical evaluations, Thomas qualified for increased disability compensation. The judge tentatively found that she was permanently totally disabled and ordered that Color Country initiate permanent total disability subsistence payments to provide for Thomas during the interim period pending a final finding of permanent total disability. Under the Workers’ Compensation Act, a final finding could not be made until Color Country had the opportunity to submit a reemployment plan for the judge’s evaluation.

¶ 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.¹ He also ordered Color Country to pay all medical expenses related to Thomas’s accident.

¶ 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, 2001 UT App. 370, ¶ 47, 38 P.3d 969. However, the court of appeals also briefly addressed whether the administrative law judge appropriately issued an abstract of Thomas’s award and concluded that “the order was not a final order, and hence, the abstract was improperly issued.” Id. at ¶¶ 44^17.

¶ 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). Utah Code Ann. § 78-2-2(3)(a) (2002).

ANALYSIS

¶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, 2002 UT 25, ¶ 6, 44 P.3d 734. “When interpreting statutes, we determine the statute’s meaning by first looking to the statute’s plain language, and give effect to the plain language unless the language is ambiguous.” State v. Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667 (quotation omitted). Moreover, “[t]he plain language of a statute is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same statute and with other statutes under the same and related chapters.” Id. (quotation omitted). Further, “ ‘when two statutory provisions conflict in their operation, the provision more specific in application governs over the more general provision.’ ” Taghipour v. Jerez, 2002 UT 74, ¶ 11, 52 P.3d 1252 (quoting Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 15, 24 P.3d 958).

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, 970 P.2d 1260, 1262 (Utah 1998). However, the legislature has provided' a mechanism to aid injured employees when employers refuse to comply with an administrative law judge’s award of disability compensation by allowing an order for such compensation to “be enforced in the same manner as any judicial judgment.” Id. Section 34A-2-212 of the Utah Labor Code states that “[a]n abstract of any final order providing an award may be filed ... in the office of the clerk of the district court,” and that such an abstract shall “constitute a lien” upon the employer’s real property. Utah Code Ann. § 34A-2-212(l)(a), (c) (2001). In other words, an injured employee may use the district court to enforce the payment of an award issued by the Commission by filing an abstract of “any final order providing an award” with the district court.²

¶ 11 This case turns on the interpretation of this language. Clearly, the administrative law judge’s order provided Thomas with an award of permanent total disability compensation; at issue is whether that award was final. Since only abstracts of “final orders providing an award” may be filed in district court, the administrative law judge’s issuance of an abstract of Thomas’s award was proper only if the order based on the tentative finding constituted a “final order.”

¶ 12 In their arguments regarding the meaning of “final order” in section 34A-2-212, both parties rely on the three-prong test set forth in Union Pacific Railroad Co. v. Utah State Tax Commission, 2000 UT 40, ¶ 16, 999 P.2d 17.³ The Union Pacific test asks three questions to determine whether agency action is final for purposes of judicial review:

(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 Utah Code Ann. § 63-46b-14(3)(a) (1997); Union Pacific, 2000 UT 40 at ¶ 11, 999 P.2d 17. That act establishes that “the Supreme Court or the Court of Appeals has jurisdiction to review all final agency action resulting from formal adjudicative proceedings.” Utah Code Ann. § 63-46b-16(l) (1997).⁴ Thus, the Union Pacific test is a jurisdictional inquiry.

¶ 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, 970 P.2d 702, 705 (Utah 1998). Since this act does not provide a definition, we developed the Union Pacific test to determine when administrative orders constitute “final agency actions” in order to invoke appellate jurisdiction. Union Pacific, 2000 UT 40 at ¶ 16, 999 P.2d 17. Unlike the term “final agency action,” the term “final order” is defined in the Workers’ Compensation Act. Because this act clearly defines “final order,” we need not turn to Union Pacific for guidance on what constitutes a “final order” for which an abstract may issue. Thus, what constitutes a final order for purposes of appellate review is different than what constitutes a final order for purposes of the issuance of an abstract of an administrative award.

¶ 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.

¶ 16 Our analysis today turns on the “final order” language of section 34A-2-212, but that language “should not be isolated from the rest of the [Utah Labor Code],” Provo City Corp. v. State, 795 P.2d 1120, 1123 (Utah 1990), especially because sections 34A-1-303 and 34A-2-801 define what constitutes a final order of the Commission while section 34A-2^413 places a limiting construction on the definition. Thus, in addressing the issue, we look to each of these sections and seek to harmonize them with each other.

III. SECTIONS 34A-1-303 AND 34A-2-801⁵

¶ 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.” Utah Code Ann. § 34A-1-303(1) (emphasis added).. It also states that “[a] decision of the commissioner is a final order of the commission,” and “[a] decision of the Appeals Board is a final order of the commission,” unless the decisions are “set aside by the court of appeals.” Id. § 34A-1-303(2)(b)(ii), (2)(c)(ii) (emphasis added). In other words, the Utah Labor Code provides that any decision made by an entity that holds the authority of the Commission, which is not further appealed through administrative procedures, is a “final order” of the Commission.

¶ 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, 2002 UT 74, ¶ 11, 52 P.3d 1252 (quoting Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 15, 24 P.3d 958), we must now determine how the more specific provision affects our analysis. Therefore, we examine section 34A-2-413, which provides for permanent total disability awards.

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. Utah Code Ann. § 34A-2-413(l)(b) (200.1). An administrative law judge must review the evidence to determine, essentially, whether the employee is permanently disabled and unable to perform reasonably available work. Id. § 34A-2-413(l)(c).

¶21 Section 34A-2-413(6) outlines the process an administrative law judge must follow when determining whether an injured employee is entitled to permanent total disability compensation. This section requires that a finding be issued in two parts — an initial finding and a final finding. The initial finding of permanent total disability triggers a review period in which the employer or its insurance carrier may submit a reemployment plan. Id. § 34A-2-413(6)(a)(ii), (d). This subsection specifically states that the initial “finding by the commission of permanent total disability is not final, unless otherwise agreed to by the parties, until” the employer has the opportunity to submit a reemployment plan, the administrative law judge reviews this reemployment plan and the reemployment activities undertaken pursuant to statute, and the administrative law judge holds a hearing. Id. § 34A-2-413(6)(a). The intent of the reemployment plan is to determine whether the injured employee can be rehabilitated in order to reenter the workforce, and a final finding of permanent total disability is held in reserve until the possibilities of reemployment are either exhausted or abandoned. Only after all of these requirements have been met does the finding of permanent total disability become final.

¶ 22 Even though the initial finding is expressly made not final by statute, section 34A-2-413(6)(b) requires that the administrative law judge order the employer to make subsistence payments during the review period between the initial and final findings of permanent total disability. Following the initial finding, and “[pjrior to the finding becoming final, the administrative law judge shall order ... the initiation of permanent total disability payments to provide for the employee’s subsistence.” Id. § 34A-2-413(6)(b)(i) (emphasis added). Thus, through the section 34A-2-413(6)(b)(i) payments, section 34A-2-413 purports to provide injured employees with compensation until a final finding can be made regarding their disability status.

¶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 section 34A-2-212, as a “final order” under the definition set forth above.

B. A Section SJiA-2-fl3(6)(b)(i) Order Is Not a “Final Order”

¶ 24 A section 34A-2-413(6)(b)(i) order to initiate subsistence payments is predicated on the administrative law judge’s initial finding that, based on the evidence submitted, the employee is sufficiently injured to merit the receipt of permanent total disability compensation. Although this initial finding seems to fit the broad definition of a final order set forth' in sections 34A-1-303 and 34A-2-801 because it is a decision entered by an administrative law judge regarding an employee’s disability status, initial findings have been expressly excluded from the definition by the plain language of section 34A-2-413(6)(a). Thus, section 34A-2-413(6)(a) provides a specific exception to the broad definition of final order found in sections 34A-1-303 and 34A-2-801. Moreover, because this section has specific application to the subsistence payment order at issue in this case, its provisions supersede the general provisions of sections 34A-1-303 and 34A-2-801 with respect to that order.

¶ 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.⁶ The statute specifically prohibits the administrative law judge from entering a final order until these conditions are met. Because initial findings may be modified, subsistence payments predicated upon initial findings may also be modified. Hence, even though section 34A-2-413(6)(b)(i) directs administrative law judges to order the initiation of subsistence payments, such orders are expressly not “final orders.” Therefore, under the present statutory scheme, an administrative law judge may not issue an abstract of a subsistence payment order that is based on this initial, non-final finding.

¶ 26 Our conclusion does not alter the directive in section 34A-2-413(6)(b) that requires administrative law judges to order subsistence payments to be made to injured employees until the Commission reaches a final finding. However, the present structure of the statute does prevent enforcement by abstract because it classifies the initial finding of permanent total disability as not final. We recognize the difficulty this may create for injured employees and urge the legislature to rectify the problem, but we cannot ignore the plain language of section 34A-2-413(6)(a); “[t]o do otherwise trespasses upon the legislative domain.” Gottling v. P.R., Inc., 2002 UT 95, ¶ 23, 61 P.3d 989.

CONCLUSION

¶ 27 Section 34A-2-212 of the Utah Labor Code provides that an abstract of any final order providing an award may be filed with a district court for the purpose of enforcement. While sections 34A-1-303 and 34A-2-801 of the Labor Code set forth a broad definition of what constitutes a final order, the language of section 34A-2-413 excepts the initial finding of permanent total disability from this broad definition of “final order” by expressly stating that the initial, tentative finding is not final. The present statutory structure of section 34A-2-413, which governs awards of permanent total disability compensation, divides the administrative law judge’s decision-making process into two parts — an initial finding and a final finding. Because the section 34A-2^U3(6)(b)(i) order to initiate permanent total disability subsistence payments is based on the initial finding — a finding that the statute expressly states is not yet final — it is not a “final order” from which an abstract may be issued. Thus, Thomas’s abstract of award was improperly issued, and we affirm the decision of the court of appeals.

¶ 28 Justice WILKINS and Justice PARRISH concur in Associate Chief Justice DURRANT’s opinion.

1 . 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.

2 . 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 section 34A-2-212, is also moot. Compare Utah Code Ann. § 35 — 1— 59 (1979) ("[a]n abstract of any award may be filed in the office of the cleric of the district court” (emphasis added)), with Utah Code Ann. § 34A-2-212(l)(a) (2001) ("[a]n abstract of any final order providing an award may be filed ... in the office of the clerk of the district court” (emphasis added)).

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 section 34A-2-212(l)(a) because it presents an issue that affects the public interest, is likely to recur, and is capable of evading review during the brief time any one litigant is affected. Ellis v. Swensen, 2000 UT 101, ¶ 26, 16 P.3d 1233. “[T]he ultimate determination of whether to address an issue that is technically moot rests in the discre-lion of this court.” Id. Considering the serious nature of the ambiguity in the statute and the potential for recurring problems between injured employees and employers, we assume for purposes of analysis that section 34A-2-212(l)(a) applies retroactively and address the issue accordingly.

3 . 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. Utah Code Ann. § 63-46b-10(l)(f) (Supp.2003); see also id. § 63-46b-12(6)(c)(vii) (Supp.2003). In light of our analysis in today's decision, we feel it unnecessary to reach this argument.

4 . 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 Utah Code Ann. § 78-2a-3(2)(a) (2002).

5 . We note that the legislature amended sections 34A-1-303 and 34A-2-801 effective May 2003. See Utah Code Ann. §§ 34A-1-303, 34A-2-801 (Supp.2003). The changes to these sections were stylistic rather than substantive, however, and our analysis would be the same under either version. We cite therefore the sections currently in effect.

6 . "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.” Utah Code Ann. § 34A-2-413(8) (emphasis added).