Lpi Services v. McGee, 20080063.

Citation2009 UT 41,215 P.3d 135
Decision Date21 July 2009
Docket NumberNo. 20080063.,20080063.
PartiesLPI SERVICES and/or Travelers Indemnity Co. of Connecticut, Petitioners, v. Michael McGEE and the Utah Labor Commission, Respondents.
CourtSupreme Court of Utah
215 P.3d 135
2009 UT 41
LPI SERVICES and/or Travelers Indemnity Co. of Connecticut, Petitioners,
Michael McGEE and the Utah Labor Commission, Respondents.
No. 20080063.
Supreme Court of Utah.
July 21, 2009.

[215 P.3d 137]

Mark R. Sumsion, Michael K. Woolley, Salt Lake City, for petitioners.

Richard Burke, Sandy, for respondent Michael McGee.

Alan Hennebold, Salt Lake City, for respondent Utah Labor Commission.

On Certiorari to the Utah Court of Appeals.

PARRISH, Justice:


¶ 1 LPI Services and Travelers Indemnity Co. (collectively "LPI") seek reversal of the court of appeals' decision affirming the Labor Commission's (the "Commission") preliminary finding that Michael McGee is permanently and totally disabled. LPI argues that the court of appeals applied the wrong standard of review by granting deference to the Commission's statutory interpretation of Utah Code section 34A-2-413(1)(c)(iv). It further argues that the Commission exceeded its rulemaking authority when promulgating rule 612-1-10.D.1 (the "Rule") because it conflicts with the statutory language. We affirm.


¶ 2 On July 4, 2001, while working for LPI as a building engineer, McGee injured his lower back when he and three other employees attempted to move a 600-pound motor. McGee applied for Permanent Total Disability ("PTD") benefits. At the hearing to determine McGee's entitlement to PTD, both sides presented reemployment experts who proffered opinions regarding McGee's employability based on his medical reports. McGee's expert concluded that McGee "was an unfit candidate for either re-employment or vocational rehabilitation." Conversely, LPI's expert concluded that McGee "belonged in the light physical demand characteristics of work level" and identified two jobs he considered suitable for McGee. Both of these jobs paid less than the average weekly wage for the State of Utah at the time of the industrial accident. The administrative law judge (the "ALJ") entered a preliminary finding of PTD based in part on his determination under the Rule that there was no other work reasonably available for McGee to perform because the only available employment paid less than the state's average weekly wage.

¶ 3 LPI filed a Motion to Review the ALJ's ruling with the Labor Commission Appeals Board ("Appeals Board"), arguing that the controlling statute, Utah Code section 34A-2-413(1)(c)(iv), lists the only factors—age, education, past work experience, medical capacity, and residual functional capacity—that the Commission can consider when determining whether other work is reasonably available. Pursuant to the Rule, however, the Commission will only find that other work is reasonably available if "[t]he work provides a gross income at least equivalent to ... [t]he current state average weekly wage, if at the time of the accident the claimant was earning more than the state average weekly wage then in effect." Utah Admin.Code r. 612-1-10.D.1 (2009). LPI argues that the Rule adds a wage requirement not present in the statute. The Appeals Board affirmed the ALJ's decision, holding that the statutory

215 P.3d 138

term "past work experience" permits consideration not only of the injured worker's past job duties, but also of other aspects of the employment contract such as previous wages.

¶ 4 LPI re-urged its argument before the court of appeals without success. Finding an implicit grant of discretion to the agency in the broad and generalized term "other work reasonably available," the court of appeals analyzed the Commission's Rule for abuse of discretion. Under this standard of review, the court of appeals held that the Commission properly supplemented the "personal, physical characteristics of the injured employee" factors listed in section 34A-2-413(1)(c)(iv) with a second category of factors addressing "the prospective job market" (wage, location, and the regular availability of work). LPI Servs. v. Labor Comm'n, 2007 UT App 375, ¶¶ 17, 20, 173 P.3d 858. Additionally, the court of appeals held that the statutorily listed factor "past work experience" subsumes consideration of wages. Id. ¶ 22. We have jurisdiction in this case pursuant to Utah Code section 78A-3-102(3)(a) (2008).


¶ 5 We granted LPI's petition for certiorari to review two issues: first, whether the court of appeals applied the correct standard of review and second, whether the court of appeals erred in determining that the Labor Commission acted within its authority in promulgating the Rule.

¶ 6 On certiorari, this court reviews the decision of the court of appeals for correctness, giving no deference to its conclusions of law. Thomas v. Color Country Mgmt., 2004 UT 12, ¶ 9, 84 P.3d 1201.



¶ 7 Absent a legislative grant of discretion, this court reviews an agency's interpretation of its organic statute for correctness, granting no deference to the agency's interpretation. Martinez v. Media-Paymaster Plus, 2007 UT 42, ¶¶ 41-42, 164 P.3d 384. But where the legislature has granted discretion to an agency to interpret the statutory provision at issue, we will affirm the agency's interpretation if it is reasonable. Morton Int'l, Inc. v. Auditing Div. of the Utah State Tax Comm'n, 814 P.2d 581, 587 (Utah 1991) (superseded by Utah Code Ann. § 59-1-610(1)(b) with regard to administrative decisions made by the Utah State Tax Commission as stated in 49th St. Galleria v. Tax Comm'n, Auditing Div., 860 P.2d 996 (Utah Ct.App.1993)).

¶ 8 The legislature may grant an agency discretion, either explicitly or implicitly, to interpret specific statutory terms. Id. at 588. For example, the legislature expressly granted the Commission discretion in section 34A-2-413 when it mandated that "[t]he commission shall establish rules regarding part-time work and offset." Utah Code Ann. § 34A-2-413(7)(f)(I) (2005). The legislature may also implicitly grant discretion to an agency. Morton, 814 P.2d at 588. "[W]hen the operative terms of a statute are broad and generalized, these terms bespeak a legislative intent to delegate their interpretation to the responsible agency." Id. (internal quotation marks omitted). For example, this court has held that by using the term "equity and good conscience" the legislature clearly intended to confer broad discretion to the Department of Employment Security to make determinations under this standard. Salt Lake City Corp. v. Dept. of Employment Sec., 657 P.2d 1312, 1316-17 (Utah 1982).

¶ 9 This court has "also granted an agency's statutory interpretation deference when the statutory language suggested that the legislature ... left the specific question at issue unresolved." Morton, 814 P.2d at 588. Accordingly, "when there is more than one permissible reading of the statute and no basis in the statutory language or legislative history to prefer one interpretation over another ... [t]he agency that has been granted

215 P.3d 139

authority to administer the statute is the appropriate body to" interpret it. Id. at 588-89. But if we can discern the legislature's intent by using the traditional tools of statutory interpretation, we grant no deference to the agency and interpret the statute "in accord with its legislative intent." Id. at 589; cf. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.").

¶ 10 All parties agree with the general standards outlined above and likewise agree that the Commission lacks an explicit grant of discretion to interpret section 34A-2-413(1)(c)(iv). But the parties disagree on whether the term "other work reasonably available" implicitly grants the Commission discretion. We find that the plain language of the statute is ambiguous but that the legislative history indicates that the legislature clearly intended to grant the Commission discretion to consider factors beyond the five enumerated in the statute when determining whether other work is reasonably available.

A. Section 34A-2-413(1)(c)(iv) Does Not Prevent the Labor Commission From Considering More Than the Five Enumerated Factors When Determining Whether Other Work Is Reasonably Available

¶ 11 "Above all, this court's primary objective in construing enactments is to give effect to the legislature's intent." Savage v. Utah Youth Vill., 2004 UT 102, ¶ 18, 104 P.3d 1242 (internal quotation marks omitted). To discern legislative intent, "we look first to the statute's plain language." Martinez, 2007 UT 42, ¶ 46, 164 P.3d 384. "We read the plain language of the statute as a whole[ ] and interpret its provisions in harmony with other statutes in the same chapter and related chapters." Miller v....

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