Brown & Root Indus. Service v. Industrial Com'n of Utah

• Decision Date: 14 October 1997
• Docket Number: 960084,Nos. 960083,s. 960083
• Citation: 947 P.2d 671
• Parties: 328 Utah Adv. Rep. 3 BROWN & ROOT INDUSTRIAL SERVICE and Highland Insurance, Respondents, v. INDUSTRIAL COMMISSION OF UTAH and David Wardrop, Petitioners.
• Court: Utah Supreme Court

Page 671

947 P.2d 671

328 Utah Adv. Rep. 3

BROWN & ROOT INDUSTRIAL SERVICE and Highland Insurance, Respondents, v. INDUSTRIAL COMMISSION OF UTAH and David Wardrop, Petitioners.

Nos. 960083, 960084.

Supreme Court of Utah.

Oct. 14, 1997.

Julianne Blanch, Stuart L. Poelman, Dori K. Petersen, Salt Lake City, for respondents.

Alan Hennebold, Salt Lake City, for the Commission.

G. Scott Jensen, Ogden, for Wardrop.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

HOWE, Justice:

We granted certiorari to review a decision of the court of appeals that a 1988 amendment to Utah Code Ann. § 35-1-99 applies retroactively to bar David Wardrop's claim for medical expenses and that he was not entitled to temporary total disability compensation for an injury which he sustained in 1992 but which arose out of an earlier covered injury. Brown & Root Indus. Serv. v. Industrial Comm'n, 905 P.2d 305 (Ct.App.1995), cert. granted, 917 P.2d 556 (Utah 1996).

BACKGROUND

On April 23, 1987, while working for Brown & Root Industrial Service, Wardrop injured his right knee when he fell back while climbing a rope out of a ten-foot sump hole and struck his right leg on an upturned five-gallon bucket. Brown & Root Industrial was insured through Highland Insurance (collectively, "Brown & Root").

Wardrop was initially diagnosed with a knee strain. However, he continued to experience pain and over the next year saw four different doctors whose diagnoses regarding the severity of his injury differed. One of the doctors Wardrop consulted was Dr. C. Gabbert, an orthopedic surgeon, who reported that Wardrop's knee had "locked" on three or four different occasions, making it necessary to massage the knee to straighten it out. He also noted that Wardrop complained of feeling unstable on the knee. Dr. Gabbert diagnosed a probable torn meniscus and recommended arthroscopic surgery, which he performed. However, he indicated that he could not locate any tears in the medial meniscus and that the anterior cruciate ligament appeared normal. Wardrop received temporary total disability compensation from Brown & Root during his two-week recovery after the surgery.

Brown & Root paid all of Wardrop's medical expenses for the injury, with the exception of one unauthorized doctor visit. The last claim was paid in 1988. On January 27, 1992, Wardrop's knee locked while he was getting out of his car, causing him to slip and fall on ice in his inclined driveway. He testified that the knee instability he had experienced since the industrial accident in 1987 contributed to the fall. Wardrop saw Dr. D. Mayer for this injury on March 4, 1992. Dr. Mayer concluded that Wardrop suffered from an anterior cruciate ligament injury, and recommended reconstructive surgery.

Wardrop was next examined by Dr. G. Zeluff, an orthopedist, at Brown & Root's request. After reviewing Wardrop's entire medical history, Dr. Zeluff diagnosed an anterior cruciate insufficiency with some continuing damage to the medial meniscus. He noted the strong possibility that a partial tear to the anterior cruciate ligament resulting On July 31, 1994, an administrative law judge ("ALJ") conducted a hearing on Wardrop's claim and found that the accident in 1992 was a natural consequence or progression of the 1987 injury and that therefore Brown & Root was liable for the medical expenses for corrective surgery. The ALJ held that the injury was compensable regardless of the aggravation, if any, that was caused by the 1992 injury because it was causally related to the 1987 industrial injury. The ALJ rejected Brown & Root's defense that the 1988 medical expense amendment to Utah Code Ann. § 35-1-99(2) applied retroactively to bar Wardrop's claim, and awarded Wardrop temporary total disability compensation.

from the original injury had been aggravated and completed by additional twisting, especially by the fall on the ice in 1992. He explained that his findings were not inconsistent with Dr. Gabbert's earlier diagnosis, even though Dr. Gabbert had found no damage to the anterior cruciate ligament during the arthroscopic surgery in 1987, because an anterior cruciate ligament tear is very difficult to diagnose by testing or even by arthroscopic surgery. Dr. Zeluff indicated that even a torn ligament can look normal on arthroscopic examination, especially following a lapse of time between the injury and the examination. Brown & Root nonetheless denied coverage for the surgery and temporary total disability compensation, contending that it was not liable for the nonindustrial slip on the ice that created Wardrop's current need for surgery. Wardrop applied for a hearing with the Industrial Commission in May of 1993.

Brown & Root filed a motion with the Industrial Commission for review of the ALJ's decision, asserting that (a) Wardrop's injury and surgery in 1992 were unrelated to his 1987 industrial accident; (b) the 1988 medical expense amendment to section 35-1-99(2) should be applied retroactively as a bar to Wardrop's claim for medical treatment; (c) the ALJ erred in not referring this controversy to a medical panel; and (d) the ALJ erred in refusing to allow Brown & Root to cross-examine Wardrop concerning his criminal record. The Commission specifically denied each of these points and affirmed the ALJ. Brown & Root sought further review with the court of appeals, where, in addition to arguing that section 35-1-99(2) should be applied retroactively and that the causation issue should have been referred to a medical panel, Brown & Root also asserted that Wardrop's claim for temporary total disability compensation was barred by the statute of limitations.

At the time of Wardrop's first accident in 1987, there was no time limitation on coverage for medical expenses under the Workers' Compensation Act, although one existed for compensation. In 1987, section 35-1-99 provided in relevant part that "if no claim for compensation is filed with the Industrial Commission within three years after the date of the accident or the date of the last payment of compensation, the right to compensation is wholly barred." Utah Code Ann. § 35-1-99 (Supp.1987). This court has construed "compensation" as used in this version of the statute to exclude medical expenses. Kennecott Copper Corp. v. Industrial Comm'n, 597 P.2d 875 (Utah 1979). In 1988, the Utah Legislature amended section 35-1-99 to add subsection (2), which provides:

In nonpermanent total disability cases, an employee's medical benefit entitlement, ... ceases if the employee does not incur, and submit to his employer or insurance carrier for payment, for a period of three consecutive years medical expenses reasonably related to the industrial accident.

Utah Code Ann. § 35-1-99(2) (1988). ¹ The court of appeals determined that section 35-1-99(2) is a statute of limitations and, therefore, purely procedural. Brown & Root, 905 P.2d at 307. Recognizing that strictly procedural statutory amendments may be applied retroactively, the court held that the amendment to section 35-1-99(2) should be applied to bar Wardrop's claim for medical expenses where Wardrop's last previous claim was paid by Brown & Root in 1988, more than three years prior. Id. at 308. The court also held that Wardrop's claim for temporary total disability compensation was barred by the

                1988 enactment of section 35-1-99(3). 2  Id.  Both the Commission and Wardrop petitioned this court for a writ of certiorari to review the court of appeals' decision, which we granted.  917 P.2d 556
                

ANALYSIS

I. RETROACTIVE APPLICATION OF SECTION 35-1-99(2)

We now determine whether the 1988 amendment to section 35-1-99(2) should be applied retroactively to bar Wardrop's claim for medical expenses. This is a question of statutory construction, a question of law reviewed by this court under a "correction of error" standard. State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995); Zissi v. State Tax Comm'n, 842 P.2d 848, 852 (Utah 1992).

The general rule is that statutes are not applied retroactively unless retroactive application is expressly provided for by the legislature. See Utah Code Ann. § 68-3-3 (1996) ("No part of these revised statutes is retroactive, unless expressly so declared."); National Parks & Conservation Ass'n v. Board of State Lands, 869 P.2d 909, 912 (Utah 1993). The legislature did not declare that the 1988 amendment to 35-1-99(2) should be applied retroactively. Thus, under the general rule, the amendment should not govern benefits for Wardrop's 1987 injury. However, there are exceptions to the general rule against retroactive application of statutory amendments. Amendments that are purely procedural may be given retrospective effect. Roark v. Crabtree, 893 P.2d 1058 (Utah 1995); Pilcher v. State Dep't of Social Servs., 663 P.2d 450 (Utah 1983). This is a narrow exception, Washington Nat'l Ins. Co. v. Sherwood Assocs., 795 P.2d 665, 668 n. 5 (Utah.Ct.App.1990), and "only procedural changes 'which do not enlarge, eliminate, or destroy vested or contractual rights' may be applied retroactively." Salt Lake Child & Family Therapy Clinic, Inc. v. Frederick, 890 P.2d 1017, 1020 (Utah 1995) (quoting Pilcher, 663 P.2d at 455). A "substantive" change, or one that affects substantive rights, may not be applied retroactively. Ball v. Peterson, 912 P.2d 1006, 1009 (Utah.Ct.App.1996). As stated by the court of appeals in Washington National, " 'Substantive law is defined as the positive law which creates, defines and regulates the rights and duties of the parties and which may give rise to a cause of action....' " 795 P.2d at 669 (quoting Petty v. Clark, 113 Utah 205, 192 P.2d 589, 593-94 (1948)). In contrast, procedural law merely "pertains to and prescribes the practice and procedure or the legal machinery by which the substantive law is determined or made effective." Id. Thus, statutory changes are purely procedural only where they provide a " 'different mode or form of procedure for enforcing substantive...