Decision Date06 December 2001
Docket NumberNo. 20001019-CA.,20001019-CA.
Citation2001 UT App 370,38 P.3d 969
PartiesCOLOR COUNTRY MANAGEMENT dba Sizzler Restaurant and/or Mid-Century Insurance Company, Petitioner, v. LABOR COMMISSION and Nellie Thomas, Respondents.
CourtUtah Court of Appeals

Carrie T. Taylor and Mark R. Sumsion, Richards, Brandt, Miller & Nelson, Salt Lake City, for Petitioner.

Aaron J. Prisbrey and Virginius Dabney, Dabney & Dabney, St. George, for Respondents.

Before JACKSON, Associate P.J., and DAVIS and THORNE, Jr., JJ.


DAVIS, Judge:

¶ 1 Color Country Management and Mid Century Insurance Company (collectively Color Country) petition for review of the action of the Labor Commission pursuant to Utah Code Ann. §§ 34A-2-801(8) (1997), 63-46b-16 (1997),1 and Rule 14 of the Utah Rules of Appellate Procedure.2


¶ 2 Because Color Country does not challenge the Appeals Board's findings of fact, we recite the relevant facts from the Board's order on Color Country's motion for review. See Osman Home Imp. v. Indus. Comm'n, 958 P.2d 240, 241 n. 1 (Utah Ct.App.1998).

¶ 3 Nellie Thomas was employed by Color Country at its Sizzler restaurant where she worked preparing salads and maintaining the salad bar. On October 15, 1994, Thomas, while taking dirty dishes from the salad bar to the dish-washing station, slipped in a puddle of greasy water, fell, and fractured her ulna, dislocated the radial head, and tore the rotator cuff in her left arm. She also sustained injury to her spine. Thomas had six surgical procedures over the next few years, including the attachment of a metal plate in her arm; removal of a loose screw; a bone graft and reapplication of a dynamic compression plate; surgery on her rotator cuff; surgical removal of the second plate; a cast on her arm due to a new fracture through one of the screw holes; and another surgical procedure to repair yet another fracture with another bone graft, this one through the callus.

¶ 4 On May 15, 1997, Thomas filed an application for a hearing regarding her workers' compensation claim. An administrative law judge (ALJ) held an evidentiary hearing on January 6, 1998. On January 8, 1998, the ALJ awarded Thomas temporary total disability benefits of $140 per week and specifically reserved ruling on permanent partial and permanent total disability.

¶ 5 On June 23, 1998, the same ALJ issued a supplemental order, citing a January 20, 1998 report3 by Dr. Scott Smith in which Dr. Smith gave Thomas a twenty percent whole person impairment rating based on the problems she had with her left arm, shoulder, and her neck. The ALJ awarded Thomas permanent partial disability benefits based on the twenty percent whole person impairment, with a credit for amounts already paid by Color Country, and reserved ruling on permanent total disability.

¶ 6 On August 11, 1998, the same ALJ issued a third order finding that because Thomas had reached medical stability, the issue of permanent total disability was now "ripe for determination," and concluded Thomas was "tentatively permanently totally disabled." He ordered Color Country to pay subsistence benefits of $140 per week, suspended permanent partial payments, and informed the parties that Color Country could submit a reemployment plan and request a hearing on the plan.

¶ 7 In September 1998, Color Country submitted a reemployment plan and requested a hearing. In the meantime, the first ALJ retired and a second ALJ held a hearing March 8, 2000, regarding the reemployment plan submitted by Color Country. On May 18, 2000, he issued an abstract based on the August 11, 1998 award. On June 14, 2000, the second ALJ issued an order in which he reaffirmed the earlier orders, rejected the reemployment plan, and entered a final award of permanent total disability.

¶ 8 Color Country subsequently filed two motions for review: one filed June 16, 2000, to have the Appeals Board review the propriety of the abstract, and one filed July 14, 2000, to have the Appeals Board review the compensation award.

¶ 9 In its October 31, 2000 order addressing the compensation award, the Board found that by January 20, 1998, Thomas had reached medical stability with permanent impairments to her left shoulder consisting of limitations to her range of motion, "joint crepitation, and distal clavicle resection." The Board determined that Thomas had a twenty-nine percent impairment of the left shoulder, which it equated as a seventeen percent whole person impairment. The Board described the neck impairment as "critical signs of impairment without radiculopathy or loss of motion, but with some evidence of arthritis for [a] 5% whole person impairment." The Board determined that these impairments, when combined, produced a twenty percent whole person impairment.

¶ 10 The Board agreed with the earlier findings by the ALJ that Thomas could not perform other work reasonably available when taking into consideration her "age, education, past work experience, medical capacity and residual functional capacity." The Board noted that Thomas had over thirty years experience as a certified nursing assistant, but that she could not resume those duties due to her impairment. The Board found that she could not return to her job at Sizzler due to her impairment, and that her circumstances limited her ability to do other work reasonably available in the area where she lived.

¶ 11 The Board then examined the reemploymnet plan that Color Country submitted. The Board noted that the plan did not provide for "education, training, accommodation of physical problems or payment of continuing disability compensation to provide for ... subsistence during the period of rehabilitation and reemployment."

¶ 12 Based on its findings, the Board concluded that Thomas had carried her burden of proving permanent total disability and that she was entitled to an award of $131 per week, reduced from the $140 per week awarded by the ALJ.4

¶ 13 After the Board's October 31, 2000 decision affirming the ALJ's rejection of the reemployment plan and the award of permanent total disability, Color Country filed a petition for judicial review in this court pursuant to section 34A-2-801(8), section 63-46b-16, and Rule 14 of the Utah Rules of Appellate Procedure.

¶ 14 On January 22, 2001, the Commission denied the motion for review of the abstract by stating that the Appeals Board would not take any action on the motion for review of the abstract because "it appears your motion for review is moot" due to a stay granted by the district court.


¶ 15 On appeal, Color Country argues that (1) the Commission misinterpreted Utah Code Ann. § 35-1-67 (1994);5 (2) its due process rights were violated by the Commission, and if the Commission interpreted and applied section 35-1-67 correctly, then section 35-1-67 is unconstitutional on its face and as applied; and (3) the abstract was improperly issued because there was no final order at the time it was issued.

¶ 16 "Judicial review of final agency actions is governed by the Utah Administrative Procedures Act." Viktron/Lika Utah v. Labor Comm'n, 2001 UT App 8, ¶ 5, 18 P.3d 519. Under section 63-46b-16, we may grant relief "only if, on the basis of the agency's record, [we] determine[] that [Color Country] has been substantially prejudiced" because "the agency action, or the statute or rule on which the agency action is based, is unconstitutional on its face or as applied" or if "the agency has erroneously interpreted or applied the law." Utah Code Ann. § 63-46b-16(4)(a), (d) (1997).

¶ 17 Whether the statute itself is unconstitutional, and whether the agency interpretation of the statute is unconstitutional or incorrect, are questions of law that are reviewed under a correction of error standard. See Esquivel v. Labor Comm'n, 2000 UT 66, ¶¶ 13-19, 7 P.3d 777; Morton Int'l, Inc. v. Auditing Div., 814 P.2d 581, 587-89 (Utah 1991); Velarde v. Board of Review, 831 P.2d 123, 125 (Utah Ct.App.1992). "Due process challenges are questions of law that we review applying a correction of error standard." West Valley City v. Roberts, 1999 UT App 358, ¶ 6, 993 P.2d 252. Whether there was a final order at the time the abstract was issued involves the construction of statutory provisions and is a question of law which we review for correctness. See Esquivel, 2000 UT 66 at ¶ 13, 7 P.3d 777.


¶ 18 We first address Color Country's claim that the Commission interpreted section 35-1-67 incorrectly by requiring Commission approval of a reemployment plan. Color Country also argues the Commission erred by concluding that the reemployment plan must include subsistence payments and that the plan was unreasonable.

¶ 19 According to Color Country, the hearing called for in section 35-1-67 is merely to determine whether the reemployment plan is or has been successful, and it does not confer on the Commission the authority to approve or disapprove the reemployment plan.

¶ 20 Section 35-1-67 allows an employer to submit a reemployment plan for an employee who is seeking permanent total disability benefits:

(6) (a) A finding by the commission of permanent total disability is not final, unless otherwise agreed to by the parties, until:
(ii) the employer or its insurance carrier submits to the commission a reemployment plan as prepared by a qualified rehabilitation provider reasonably designed to return the employee to gainful employment or the employer or its insurance carrier provides the commission notice that the employer or its insurance carrier will not submit a plan; and
(iii) the commission, after notice to the parties, holds a hearing, unless otherwise stipulated, to consider evidence regarding rehabilitation and to review any reemployment plan submitted by the employer or its insurance carrier under Subsection (6)(a)(ii).

Utah Code Ann. § 35-1-67 (1994) (emphasis added). When interpreting statutory provisions, we are guided by our primary purpose of giving...

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