King v. Industrial Com'n of Utah, 920464-CA

• Decision Date: 18 March 1993
• Docket Number: No. 920464-CA,920464-CA
• Citation: 850 P.2d 1281
• Parties: Mark KING, Petitioner, v. The INDUSTRIAL COMMISSION OF UTAH; Workers Compensation Fund; and Superior Roofing Company, Respondents.
• Court: Utah Court of Appeals

Page 1281

850 P.2d 1281

Mark KING, Petitioner, v. The INDUSTRIAL COMMISSION OF UTAH; Workers Compensation Fund; and Superior Roofing Company, Respondents.

No. 920464-CA.

Court of Appeals of Utah.

March 18, 1993.

Robert Breeze (argued), Salt Lake City, for petitioner.

Richard G. Sumsion (argued), Salt Lake City, for respondents.

Before BILLINGS and GREENWOOD, JJ., and RUSSON, Associate P.J.

OPINION

BILLINGS, Presiding Judge:

Petitioner Mark King seeks reversal of an Order of the Industrial Commission of Utah denying him temporary total disability compensation for the period of his incarceration at the Utah State Prison and for the period after his release until corrective surgery was performed. We reverse and remand for the calculation and payment of benefits.

FACTS

King suffered an on-the-job injury to his wrist on November 20, 1989, while working for Superior Roofing Company. King received temporary total disability benefits from the Utah Workers' Compensation Fund from November 21, 1989 through May 22, 1990. The Fund also paid medical expenses.

King was scheduled for surgery to correct his wrist injury on May 30, 1990. However, on May 22, 1990, King was incarcerated at the Utah State Prison for a parole violation. Because of his incarceration, surgery was postponed. Temporary total disability compensation was terminated during the period of King's incarceration and for the period after his release until corrective surgery was performed. King was released from prison on October 13, 1990. King was admitted for surgery on January 29, 1991 and surgery was performed on January 30, 1991. Temporary total disability compensation resumed on January 29, 1991 and continued through July 14, 1991, covering the period of King's surgery and recovery.

On July 9, 1991 an Administrative Law Judge (ALJ) denied King's claim for temporary total disability benefits during the period from May 22, 1990 through January 28, 1991. The ALJ further ordered that the Workers' Compensation Fund was entitled to a credit for all temporary total compensation paid to King after May 22, 1990 and before January 29, 1991. The ALJ determined King's "loss of wages for the claimed period was not related to the industrial accident whatsoever, but, rather, was solely due to the actions or conduct of the applicant which resulted in his being incarcerated." The Industrial Commission affirmed the order of the ALJ. This appeal followed.

STANDARD OF REVIEW

On appeal, King seeks temporary total disability compensation for the period between May 22, 1990 and January 28, 1991, the period of his incarceration and the period after his release until corrective surgery was performed. King contends the Industrial Commission erroneously interpreted and applied the workers' compensation statutes in denying him compensation.

Because the proceedings in this case began after January 1, 1988, we review them under the Utah Administrative Procedures Act (UAPA). See Utah Code Ann. §§ 63-46b-0.5 to -22 (1989 & Supp.1992). Judicial review of agency action under UAPA is controlled by Utah Code Ann. § 63-46b-16 (1989). Section 4 of that statute enumerates the situations under which a court can grant relief. ¹ Because the controlling precedent from the Utah Supreme Court is less than clear ² and because of divergence in recent opinions of this court over how we discern the appropriate standard of review under UAPA, we take the opportunity today to discuss the issue in depth. Compare Putvin v. Tax Comm'n, 837 P.2d 589 (Utah App.1992) ³ (finding grant of discretion in broad statutory language without identifying whether it was explicit or implicit) with Chevron U.S.A., Inc. v. Tax Comm'n, 847 P.2d 418, 420, n. 6, (Utah App.1993) ⁴ (finding no explicit grant of discretion because no statutory directive to interpret a term). We feel compelled to take this approach due to the admonitions this court recently received from the supreme court in State v. Thurman, 846 P.2d 1256 (Utah 1993). In that case, which resolved a conflict in this court regarding the standard of review applicable in certain criminal matters, the supreme court noted its

uneasiness with the persistence of the division in the court of appeals on this [standard of review] issue. To the extent that this disagreement simply represents an evolution of two conflicting interpretations of the same legal doctrine by different panels of judges, its persistence is contrary to the doctrine of stare decisis....

... It is one thing to admit that differences among judges on a particular legal question can exist; it is quite another to sanction variability in the rule of law depending solely on which of several judges of an appellate court sit on a given case.

Id. at 1271. Thus, to eliminate any confusion as to the analytical model this court is following to determine the appropriate standard of review under UAPA, we engage in a rather laborious discussion of the standard of review.

A. Issues of Fact

Under UAPA, the standard we apply when reviewing factual findings is clear. The only subsection under which factual findings can be challenged is 63-46b-16(4)(g). Under that subsection, we will change a factual finding only if it "is not supported by substantial evidence when viewed in light of the whole record before the court." Utah Code Ann. § 63-46b-16(4)(g) (1989). Accord Zissi v. Tax Comm'n, 842 P.2d 848, 852-54 (Utah 1992). " 'Substantial evidence is that which a reasonable person "might accept as adequate to support a conclusion." ' " Stewart v. Board of Review, 831 P.2d 134, 137 (Utah App.1992) (quoting Merriam v. Board of Review, 812 P.2d 447, 450 (Utah App.1991) (quoting Grace Drilling Co. v. Board of Review, 776 P.2d 63, 68 (Utah App.1989))). To reach our conclusion we examine the entire record available to the court, not simply that which supports the findings of the ALJ. Id. Thus, Petitioner necessarily has the burden of marshaling "all of the evidence supporting the findings and show[ing] that despite the supporting facts, and in light of the conflicting or contradictory evidence, the findings are not supported by substantial evidence." Grace Drilling, 776 P.2d at 68. Accord Hales Sand & Gravel Inc. v. Tax Comm'n, 842 P.2d 887, 890 (Utah 1992). This review is not as strict as a de novo review of the proceedings, nor as lenient as a review for "any competent evidence" to support the findings, it simply accords deference to the agency where two reasonable, yet conflicting, conclusions could have been reached. See Grace Drilling, 776 P.2d at 68 & n. 7.

Additionally, the Utah Rules of Appellate Procedure govern how we review agency actions. See Utah Code Ann. § 63-46b-16(2)(b) (1989). Rule 11(e)(2) of the Utah Rules of Appellate Procedure provides: "If the appellant intends to urge on appeal that a finding or conclusion is unsupported by or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." Utah R.App.P. 11(e)(2). Rule 11 requires counsel provide the appellate court with all evidence pertinent to the issues on appeal. See Sampson v. Richins, 770 P.2d 998, 1102 (Utah App.), cert. denied, 776 P.2d 916 (Utah 1989). Thus, our procedural rules specifically require a petitioner to provide a transcript of the proceedings if he is going to challenge factual findings under subsection 63-46b-16(4)(g). A petitioner must also provide a transcript if he argues a legal conclusion is unsupported by the evidence in the case. Otherwise we have no basis on which to evaluate the findings and conclusions.

B. Issues of General Law

The standard we apply when an agency interprets or applies general law such as case law, constitutional law, or non-agency specific legislative acts is also clear. Our review in this area is guided by section 63-46b-16(4)(d). As we did prior to UAPA, we review agency interpretations of general law "under a correction of error standard, giving no deference to the agency's decision." Questar Pipeline Co. v. Tax Comm'n, 817 P.2d 316, 318 (Utah 1991). See also Zissi v. Tax Comm'n, 842 P.2d 848, 852-54 (Utah 1992) (holding issues of law are reviewed for correctness under § 63-46b-16(4)(d)); Savage Indus., Inc. v. Tax Comm'n, 811 P.2d 664, 670 (Utah 1991) (finding agency's erroneous interpretation of law is grounds for relief under § 63-46b-16(4)(d)). In Morton International, Inc. v. Auditing Division, 814 P.2d 581 (Utah 1991), the supreme court articulated the reason for the correction of error standard is not simply because the court characterizes an issue as one of general law but because the agency has no special experience or expertise placing it in a better position than the courts to construe the law. Id. at 586.

C. Issues of Agency-Specific Law

We are faced with a far more difficult task in deciding the amount of deference to grant an agency's interpretation or application of agency-specific statutory law. In that instance, we grant deference only "when there is a grant of discretion to the agency concerning the language in question, either expressly made in the statute or implied from the statutory language." Id. at 589. ⁵ If there is a grant of discretion we review the agency action under Utah Code Ann § 63-46b-16(4)(h)(i) (1989). See Chicago Bridge & Iron Co. v. Tax Comm'n, 839 P.2d 303 (Utah 1992). Where a grant exists, we will not disturb the agency's interpretation or application of the law unless its determination exceeds the bounds of reasonableness and rationality. Morton, 814 P.2d at 586-87, 589, 592; Cross v. Board of Review, 824 P.2d 1202, 1204 (Utah App.1992). "[A]bsent a grant of discretion, a correction-of-error standard is used in reviewing an agency's interpretation or application of a statutory term." Morton, 814 P.2d at 588. See also Mor-Flo Indus., Inc. v. Board of Review, 817 P.2d 328, 330 (Utah App.1991), cert. denied, 843 P.2d 516 (Utah 1992). In other words, we review agency...