Frito-Lay v. Labor Com'n

• Decision Date: 28 August 2008
• Docket Number: No. 20061053-CA.,20061053-CA.
• Parties: FRITO-LAY and Transcontinental Insurance Company, Petitioners, v. LABOR COMMISSION and Amy C. Clausing, Respondents.
• Court: Utah Court of Appeals

193 P.3d 665

2008 UT App 314

FRITO-LAY and Transcontinental Insurance Company, Petitioners, v. LABOR COMMISSION and Amy C. Clausing, Respondents.

No. 20061053-CA.

Court of Appeals of Utah.

August 28, 2008.

Theodore E. Kanell and John H. Romney, Salt Lake City, for Petitioners.

Alan L. Hennebold, Salt Lake City, for Respondent Labor Commission.

Gary E. Atkin and K. Dawn Atkin, Salt Lake City, for Respondent Amy C. Clausing.

Before Judges GREENWOOD, THORNE, and DAVIS.

OPINION

DAVIS, Judge:

¶ 1 Petitioners Frito-Lay and Transcontinental Insurance Company (collectively, Frito-Lay) seek review of the Utah Labor Commission Appeals Board's (the Board) October 23, 2006 order dismissing Frito-Lay's motion for relief under rule 60(b) of the Utah Rules of Civil Procedure. See generally Utah R. Civ. P. 60(b). We reverse.

BACKGROUND

¶ 2 Amy C. Clausing was injured in March 1999 while working for Frito-Lay. In February 2001, Clausing filed an application for workers' compensation benefits, requesting temporary total disability benefits and payment for medical expenses. Clausing thereafter amended her application to seek permanent partial disability benefits and payment for recommended medical care for knee, elbow, and lumbar spine injuries. The parties settled these claims at a January 2002 hearing, and an administrative law judge (the ALJ) issued an order reflecting the parties' agreement (the October 2002 Order). The October 2002 Order reflected an award of permanent partial disability benefits based on an 8.5% impairment rating and ordered payment of Clausing's claimed medical expenses, but did not address temporary total disability. At the time of the October 2002 Order, Clausing was working and had been paid benefits for all periods of time that she had not been able to work.

¶ 3 In July 2003, Clausing filed a second application for benefits, again claiming knee, elbow, and lumbar spine injuries arising from the March 1999 incident and adding new claims relating to her neck and a stroke. Clausing sought permanent partial disability benefits, payment for medical expenses, interest, and temporary total disability benefits for "dates missed after surgeries or for treatment prior to MMI."¹ Clausing had been employed at various times since 1999, and MMI occurred prior to April 2004.

¶ 4 On stipulation of the parties, the claims were submitted to a medical panel, which determined that the new neck injury and stroke claims were not related to the March 1999 incident. On February 10, 2005, an ALJ entered into the record the parties' stipulation as to Clausing's work history for the period between March 1999 and June 2004, including the various wages she earned during the periods she was able to work (the Stipulation).

¶ 5 On September 23, 2005, the ALJ issued an order addressing Clausing's new claims (the September 2005 Order). Along with other relief, Clausing was awarded temporary total disability benefits in the amount of $487.00 per week for the period of March 1999 through June 2004, subject to offset for any such amounts previously paid. However, the September 2005 Order failed to explicitly exclude those stipulated weeks that Clausing worked or was able to work. Frito-Lay did not file a motion for any type of agency review of the September 2005 Order.

¶ 6 On December 1, 2005, Clausing made a demand on Frito-Lay for payment of $123,061.20 in temporary total disability payments pursuant to her literal reading of the September 2005 Order. Frito-Lay, knowing that Clausing's demand was contrary to the Stipulation, refused to pay the claimed amount. Clausing later increased her demand to $183,561.85 to include the full amount of interest due on the previously claimed award. On December 21, 2005, Frito-Lay filed a motion with the ALJ, seeking relief from the temporary total disability provisions of the September 2005 Order pursuant to rule 60(b) of the Utah Rules of Civil Procedure. See generally Utah R. Civ. P. 60(b). In an affidavit in response to Frito-Lay's rule 60(b) motion, Clausing's counsel stated that she realized that Clausing's interpretation of the September 2005 Order "was not in keeping with the Stipulation." Nevertheless, the ALJ denied Frito-Lay's motion, ruling that Frito-Lay "filed [its rule 60(b)] motion 90 days after the entry of the final order [on September 23, 2005]" and that there were "insufficient grounds" to establish the existence of mistake, surprise, or excusable neglect warranting relief under rule 60(b) because Frito-Lay "failed to return telephone calls to [Clausing's] counsel and grossly neglected to request relief from the [September 2005 Order] by way of appeal within the 30 days allowed by law and rule."

¶ 7 Frito-Lay requested that the Board review the ALJ's denial of its rule 60(b) motion. The Board dismissed Frito-Lay's motion without a hearing, basing its decision not on Frito-Lay's failure to establish grounds for relief under rule 60(b), but on the grounds that rule 60(b) is not cognizable in Labor Commission proceedings. Specifically the Board ruled that the issue was governed by the Utah Administrative Procedures Act (UAPA), see Utah Code Ann. §§ 63-46b-0.5 to -23 (2004 & Supp.2007); that UAPA does not expressly incorporate rule 60(b) as applicable to agency proceedings; that UAPA does expressly allow for full substantive review of ALJ decisions by review requested within thirty days of the decision; and that Frito-Lay waived any right to relief when it failed to request review within thirty days of the September 2005 Order. Accordingly, the Board dismissed Frito-Lay's motion and struck the ALJ's order addressing the merits of the motion. However, in doing so, the Board noted that the ALJ's decision "may have awarded excessive temporary total disability compensation to ... Clausing." Frito-Lay now seeks review of the Board's decision.

ISSUE AND STANDARD OF REVIEW

¶ 8 Frito-Lay challenges the Board's determination that Frito-Lay's rule 60(b) motion, filed three months after the entry of the September 2005 Order, was not an available avenue of relief from the September 2005 Order. The scope of our review is governed by UAPA, and we may grant relief in these circumstances only if the Board "has erroneously interpreted or applied the law." Id. § 63-46b-16(4)(d) (2004); see also Crosland v. Board of Review of Indus. Comm'n, 828 P.2d 528, 529-30 (Utah Ct.App.1992). Thus, we review the Board's statutory interpretation for correctness. See Eastern Utah Broad. v. Labor Comm'n, 2007 UT App 99, ¶ 5, 158 P.3d 1115.

ANALYSIS

¶ 9 At issue here is whether a party may seek relief from a final administrative order under rule 60 of the Utah Rules of Civil Procedure. The Board concluded that rule 60(b) is not applicable to agency proceedings. We disagree. The Board equated the right under rule 60(b) with the right to appeal the ALJ's decision. However, the two rights are distinct, and the unavailability of one does not preclude the availability of the other. Further, the discovery rule applies under the facts of this case.

I. Rule 60

¶ 10 Clausing contends that UAPA precludes the use of rule 60 in Labor Commission cases, relying on two statutes regarding internal appellate review and requests for reconsideration—sections 63-46b-12 and 63-46b-13 of the Utah Code, respectively. An examination of these statutes and Commission rules reveals, however, that rule 60 provides the Board with the power to correct the amount of Clausing's award.

¶ 11 The review statute, Utah Code section 63-46b-12, merely grants administrative agencies the power to have internal appellate review of ALJ orders, as long as requests for such reviews are filed within thirty days and meet other procedural requirements. See Utah Code Ann. § 63-46b-12(1) (2004). Similarly, the request for reconsideration statute, Utah Code section 63-46b-13, merely grants aggrieved parties a method of review of an ALJ's order "[w]ithin 20 days after the date that an order is issued for which review by the agency or by a superior agency under [s]ection 63-46b-12 is unavailable, and if the order would otherwise constitute final agency action." Id. § 63-46b-13(1)(a) (emphasis added). That is, if an administrative agency does not utilize the power granted to it under the review statute and does not have a procedural mechanism to request review of an ALJ's order within thirty days, a party has twenty days to file a request for reconsideration with that agency.

¶ 12 Section 63-46b-13 does not apply to actions before the Board because the Labor Commission has opted to provide for an agency review of its ALJs' orders, see Utah Code Ann. § 34A-1-303 (2005); Utah Admin. Code R602-2-1(M). And although section 63-46b-12 is applicable because the Labor Commission's rules allow agency review, we see nothing in that statute that would prohibit modification of an order under rule 60. Thus, sections 63-46b-12 and 63-46b-13 do not preclude the application of rule 60 in cases before the Labor Commission.

A. Rule 60(a)

¶ 13 Throughout these proceedings, the parties have alluded, either directly or indirectly, to the application of rule 60(a). On March 4, 2004, Frito-Lay filed a rule 60(a) motion to correct the maximum rate for the March 1999 workplace accident from one amount to another, lower amount. In response, Clausing "agree[d] that the proper ... maximum rate" was the lower amount but questioned whether "it [was] proper to correct the previous Order over a year after the Order was entered." Clausing never argued that rule 60(a) was inapplicable to adjudicative proceedings. The ALJ did not directly rule on the motion, instead he entered the Stipulation into the record. And in her memorandum opposing Frito-Lay's 2005 motion for relief, Clausing raised the issue of whether the ALJ would have the power to correct the amount of Clausing's award under rule 60(a). On appeal to this court, Frito-Lay contends that this amount was a clerical error...