A&B Mechanical v. Labor Commission

2013 UT App 230
_________________________________________________________

THE UTAH COURT OF APPEALS

A&B MECHANICAL CONTRACTORS AND
WORKERS COMPENSATION FUND,
Petitioners,
v.
LABOR COMMISSION AND SCOTT DRISCOLL,
Respondents.

Memorandum Decision
No. 20110923‐CA
Filed September 19, 2013

Original Proceeding in this Court

Hans M. Scheffler, Attorney for Petitioners
Gary E. Atkin and K. Dawn Atkin, Attorneys for
Respondent Scott Driscoll
Alan L. Hennebold, Attorney for Respondent
Labor Commission

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and
CAROLYN B. MCHUGH concurred.

CHRISTIANSEN, Judge:

¶1 Petitioners A&B Mechanical Contractors and Workers
Compensation Fund (collectively, A&B) seek review of the Utah
Labor Commission’s (the Commission) decision affirming the
Administrative Law Judge’s (the ALJ) order awarding permanent
total disability benefits to Scott Driscoll. We decline to disturb the
Commission’s decision.

¶2 While working for A&B Mechanical Contractors in 2004,
Driscoll was lifting a 175‐pound beam when he “felt a ‘pop’ and
immediate pain in his left shoulder and neck.” Driscoll underwent
 A&B Mechanical v. Labor Commission

surgery on his left shoulder in June 2004. In September 2005,
Driscoll filed an Application for Hearing with the Commission
requesting permanent total disability benefits. In late 2005, A&B
and Driscoll reached a settlement agreement whereby A&B would
pay subsistence benefits to Driscoll until his return to work or
further order of the ALJ. A&B also agreed to diligently pursue a
vocational rehabilitation plan for Driscoll (the Return to Work
Plan), and Driscoll agreed to fully cooperate with the Return to
Work Plan. The ALJ approved the settlement by order entered
March 21, 2006 (the 2006 Stipulated Order). The settlement
agreement provided, “If rehabilitation is not possible, the
administrative law judge shall order payment of permanent total
disability benefits. If rehabilitation is successful, permanent partial
disability benefits will resume for 12.23 weeks at the rate of $386.00
per week when [Driscoll] returns to work.” The order provided
that “the parties [would] notify the Court of the need for further
action” if the Return to Work Plan was not successful.

¶3 Driscoll completed an electronics technician certification
program as required by the Return to Work Plan, but he remained
unable to find work. To improve Driscoll’s employment prospects,
the parties amended the Return to Work Plan to allow Driscoll to
pursue and complete a two‐year degree in information technology.
During this time, Driscoll also diligently searched for jobs as
required by the Return to Work Plan but received only one offer in
four years—for a job which Driscoll determined he was unable to
perform due to his medical restrictions.

¶4 In 2008 A&B and Driscoll entered into a second settlement,
which the ALJ approved by order on August 25, 2008 (the 2008
Stipulated Order). The new settlement agreement expressly
incorporated the 2006 Stipulated Order, and the ALJ ordered that
the 2006 Stipulated Order remain in effect except as inconsistent
with or modified by the 2008 Stipulated Order. The 2008 Stipulated
Order provided for subsistence benefits to continue through
September 15, 2008, after which permanent partial disability
payments would be made for 12.23 weeks. A&B was also required

20110923‐CA 2 2013 UT App 230
 A&B Mechanical v. Labor Commission

to provide Driscoll with ninety days of job placement assistance.
The 2008 Stipulated Order further provided that if Driscoll was still
unemployed after he had completed his schooling and after the
permanent partial disability benefit payments had ceased, the
parties could revisit Driscoll’s claims for further benefits either in
mediation or by Driscoll filing an Application for Hearing. The
parties also agreed that by entering into the settlement, they were
not giving up any of their rights, claims, or defenses.

¶5 On February 17, 2009, Driscoll filed a Motion for Final
Determination of Permanent Total Disability arguing that his
rehabilitation was not possible. See Utah Code Ann. § 34A‐2‐
413(5)(f) (LexisNexis 2011)1 (“If a preponderance of the evidence
shows that successful rehabilitation is not possible, the
administrative law judge shall order that the employee be paid
weekly permanent total disability compensation benefits.”). The
ALJ held an evidentiary hearing on the motion on March 30, 2009.
Before the parties gave opening statements, the ALJ heard A&B’s
procedural argument that the 2008 Stipulated Order and the
governing statute required Driscoll to file an Application for
Hearing to reestablish his entitlement to permanent total disability
compensation, rather than a motion to establish only whether
successful rehabilitation was possible. In light of A&B’s procedural
concerns, the ALJ offered to continue the hearing to allow the
parties more time to prepare. However, A&B expressly denied that
it would be prejudiced by moving forward with the hearing and
agreed to have the matter heard that day.

¶6 In its Final Order of Permanent Total Disability, the ALJ
concluded that A&B had conceded to an initial determination that

1. Although the ALJ and A&B cite the version of the statutes in
effect at the time, we cite the current version of the Utah Code for
the reader’s convenience. The relevant subsections of Utah Code
section 34A‐2‐413 have simply been renumbered, and none of the
substantive amendments to the other sections are relevant to this
appeal. See Utah Code Ann. § 34A‐2‐413 amend. notes (LexisNexis
2011).

20110923‐CA 3 2013 UT App 230
 A&B Mechanical v. Labor Commission

Driscoll was permanently and totally disabled. The ALJ also found
that, although A&B diligently pursued and Driscoll fully
cooperated with the Return to Work Plan, Driscoll could not be
successfully rehabilitated. Accordingly, the ALJ ordered A&B to
pay Driscoll permanent total disability benefits of $492 per week
until further order of the Commission. A&B thereafter sought
review of the ALJ’s decision with the Commission’s appeals board.
The Commission adopted the ALJ’s findings of fact and affirmed
the ALJ’s decision. A&B petitioned this court for judicial review.

I. Interpretation of the 2006 Stipulated Order and the 2008
Stipulated Order

¶7 A&B first argues that the Commission abused its discretion
by disregarding the clear language of the 2008 Stipulated Order
and awarding Driscoll permanent total disability benefits without
requiring Driscoll to file an Application for Hearing and to present
evidence demonstrating that he was entitled to such benefits.
“Whether the commission correctly or incorrectly denied benefits
is a traditional mixed question of law and fact.” Jex v. Labor
Comm’n, 2013 UT 40, ¶ 15 (citation and internal quotation marks
omitted). However, because A&B’s challenge is to the propriety of
the ALJ’s and the Commission’s interpretation of the ALJ’s own
order, we review that interpretation for abuse of discretion. Cf.
Uintah Basin Med. Ctr. v. Hardy, 2008 UT 15, ¶ 9, 179 P.3d 786 (“A
court’s interpretation of its own order is reviewed for clear abuse
of discretion and we afford the district court great deference.”).

¶8 A&B argues that, under the 2008 Stipulated Order, the ALJ
should have required Driscoll to restart the two‐step adjudicative
process by filing an Application for Hearing and proving not only
his inability to be rehabilitated but also his entitlement to
permanent total disability benefits. See Utah Code Ann. § 34A‐2‐
413(1)(b), (1)(c) (explaining that the employee has the burden to
prove permanent total disability and entitlement to compensation);
id. § 34A‐2‐801(1)(a) (Supp. 2013) (providing that an employee
begins the process of contesting a workers’ compensation action by
filing an application for hearing); Utah Admin. Code R602‐2‐

20110923‐CA 4 2013 UT App 230
 A&B Mechanical v. Labor Commission

1(A)(3) (describing the application for hearing form provided to
initiate this process). The two‐step adjudicative process for a
permanent total disability claim requires the Commission to first
determine that the claimant is permanently and totally disabled
and then determine if the claimant can be reemployed or
rehabilitated. Utah Admin. Code R612‐200‐7(C); Columbia HCA v.
Labor Commʹn, 2011 UT App 210, ¶¶ 11–12, 258 P.3d 640 (detailing
the adjudicative process of obtaining permanent total disability
compensation). A&B specifically points to the 2008 Stipulated
Order’s requirement that A&B pay subsistence benefits to Driscoll
only through September 15, 2008, and permanent partial disability
compensation for an additional 12.23 weeks, after which time
Driscoll was to file an Application for Hearing to claim additional
benefits. A&B argues that this language had the effect of
terminating Driscoll’s right to receive permanent total disability
compensation and that to request additional benefits, Driscoll
needed to start anew with an Application for Hearing.

¶9 The ALJ determined that the parties had agreed in 2006 and
2008 to Driscoll’s entitlement to permanent total disability
compensation pursuant to Utah Code section 34A‐2‐413(1). Thus,
the parties had already litigated and stipulated to Driscoll’s
entitlement to permanent total disability benefits. The only thing
remaining for the parties to address was whether Driscoll could be
rehabilitated through the Return to Work Plan. Under the 2006
Stipulated Order, the parties were to notify the court that further
action was warranted if the Return to Work Plan proved
unsuccessful. Indeed, it appears that a dispute over the success of
the initial Return to Work Plan led to the 2008 Stipulated Order,
which explicitly incorporated the 2006 Stipulated Order and
modified it to the extent there were inconsistencies. The 2008
Stipulated Order provided, “The parties agree after [Driscoll]
completes his schooling . . . and payment of permanent partial
compensation by [A&B], if [Driscoll] has been unable to secure
employment, they will revisit, either by mediation or filing of
Application for Hearing [Driscoll’s] entitlement to additional
indemnity benefits.”

20110923‐CA 5 2013 UT App 230
 A&B Mechanical v. Labor Commission

¶10 Although the 2008 Stipulated Order provided for an explicit
termination date for the subsistence and disability benefits, it also
provided a means for Driscoll to reinstate his claim for additional
permanent total disability benefits by filing an Application for
Hearing or requesting mediation. The ALJ determined that the
purpose of this provision was to allow Driscoll to reinitiate
proceedings at the second step to determine the success of the
Return to Work Plan, not to relitigate his entire claim.

¶11 Utah’s legislature and the Commission have devised a
system for requesting a hearing at the later stage of the adjudicative
process, which allows an employee or the employer to argue that
the other party has not diligently pursued or fully cooperated with
a reemployment plan. See Utah Code Ann. § 34A‐2‐413(5)(e)(iii)
(LexisNexis 2011) (explaining that the employer or its insurance
carrier must “diligently pursue” the reemployment plan); id. § 34A‐
2‐413(8) (explaining that the employee must “fully cooperate[]
with” the reemployment plan). The Commission provides a
specific Application for Hearing form for the aggrieved party in
either of these circumstances to request agency action regarding the
reemployment plan. Utah Admin. Code R602‐5‐3(A)(1)
(“‘Application for Hearing’ means the Application for Hearing for
Final Determination of Permanent Total Disability form
(Adjudication Form 502), all supporting documents, and proof of
service which together constitute the request for agency action for
final determination of permanent total disability based on an
employer’s failure to diligently pursue the reemployment plan
pursuant to [Utah Code section 34A‐2‐413(5)(e)(iii)].”); id. R602‐5‐
6(A)(1) (“‘Application for Hearing’ means the Application for
Hearing for Termination or Reduction of Compensation form
(Adjudication form 602), with all supporting documents and proof
of service which together constitute the request for agency action
regarding termination or reduction of benefits pursuant to [Utah
Code section 34A‐2‐413(8)].”). But there is no specific Application
for Hearing form for initiating a final determination for permanent
benefits when rehabilitation is not possible under section 34A‐2‐
413(5)(f), as there is for section 34A‐2‐413(5)(e)(iii) or section 34A‐2‐
413(8). See Utah Code Ann. § 34A‐2‐413(5)(f). However, at this

20110923‐CA 6 2013 UT App 230
 A&B Mechanical v. Labor Commission

stage, where the ALJ has already initially determined that the
employee is entitled to permanent total disability benefits, a party
should have the same means to request a hearing before the ALJ to
make a final determination of permanent total disability benefits if
that party believes that “successful rehabilitation is not possible.”
See id.

¶12 The ALJ interpreted the 2008 Stipulated Order as providing
Driscoll with such a means to reinstate his claim for additional
benefits, akin to the forms provided in the Utah Administrative
Code for the other provisions of section 34A‐2‐413. We see no
abuse of discretion in this interpretation by the ALJ of the 2008
Stipulated Order. See Uintah Basin Med. Ctr. v. Hardy, 2008 UT 15,
¶ 9, 179 P.3d 786. Indeed, our supreme court has held that “great
liberality as to form and substance of an application for
compensation is to be indulged.” Vigos v. Mountainland Builders,
Inc., 2000 UT 2, ¶ 17, 993 P.2d 207 (plurality opinion) (citation and
internal quotation marks omitted); see also Reinsurance Fund v. Labor
Comm’n, 2012 UT 76, ¶ 12, 289 P.3d 576 (adopting the reasoning of
the Vigos plurality opinion). Furthermore, as our supreme court has
stated in a related context, “the statutory term ‘application for
hearing’ does not create a formal requirement to file a specific
document, but rather requires a filing sufficient to provide notice
to all interested parties.” Reinsurance Fund, 2012 UT 76, ¶ 12.

¶13 A&B maintains, however, that if the ALJ had required
Driscoll to file an Application for Hearing as required by the 2008
Stipulated Order, Driscoll would have been required to reestablish
his entitlement to benefits under Utah Code section 34A‐2‐413(1).
However, in light of the statutory and regulatory scheme
governing requests for determination of benefits after initiation of
a reemployment plan, it simply does not make sense for the ALJ to
have entered an order requiring Driscoll to relitigate his
entitlement to permanent total disability benefits because the
Return to Work Plan failed, when Driscoll would have had no such
burden had either party failed to comply with the plan.

20110923‐CA 7 2013 UT App 230
 A&B Mechanical v. Labor Commission

¶14 Moreover, it is unclear how an order compelling Driscoll to
file an Application for Hearing to reinitiate the adjudicative process
would have led to a different result in this case, other than
occupying the resources of the parties and the Commission for
longer than necessary. A&B concedes that Driscoll proved the
elements of section 34A‐2‐413(1) via the parties’ stipulation in 2006.
Prior to opening statements at the evidentiary hearing, Driscoll
stated that there was no new medical evidence requiring any new
restrictions. A&B agreed that Driscoll’s medical restrictions were
unchanged, that it would not be prejudiced by going forward with
the hearing, and that further time would not assist its case. Driscoll
was in the same position with respect to his disability in 2009 as he
was in 2006. Accordingly, we do not agree that Driscoll was
required to reestablish his eligibility for permanent total disability,
and we uphold the Commission’s and the ALJ’s interpretation of
the 2008 Stipulated Order as allowing Driscoll to reinstate his claim
for benefits.

II. Interpretation and Application of Utah Code Section
34A‐2‐413

¶15 A&B next argues that the ALJ erred by failing to consider
Utah Code section 34A‐2‐413(6)(a)(ii) and to reconcile it with
section 34A‐2‐413(5)(f). See Utah Code Ann. § 34A‐2‐413(6)(a) (“The
period of benefits commences on the date the employee acquired
the permanent, total disability, as determined by a final order of
the commission based on the facts and evidence, and ends . . .
when the employee is capable of returning to regular, steady
work.”); id. § 34A‐2‐413(5)(f) (“If a preponderance of the evidence
shows that successful rehabilitation is not possible, the
administrative law judge shall order that the employee be paid
weekly permanent total disability compensation benefits.”). “The
interpretation of a statute is a question of law, which we review for
correctness.” Westgate Resorts, Ltd. v. Consumer Prot. Grp., LLC, 2012
UT 56, ¶ 10, 289 P.3d 420. Whether the Commission applied the
correct legal standard in making its determination is also a
question of law, which we review for correctness. In re Adoption of
Baby B., 2012 UT 35, ¶¶ 46–47.

20110923‐CA 8 2013 UT App 230
 A&B Mechanical v. Labor Commission

¶16 A&B argues that Driscoll was capable of returning to
regular, steady work and that the ALJ erred in not determining that
section 34A‐2‐413(6)(a)(ii) ended Driscoll’s entitlement to benefits.
However, the ALJ’s determination that successful rehabilitation
was not possible under the reemployment plan required
consideration of whether other work was “reasonably available,”
which turns in part on whether that work was “‘regular, steady,
and readily available.’” Columbia HCA v. Labor Comm’n, 2011 UT
App 210, ¶¶ 12–13, 258 P.3d 640 (quoting Utah Admin. Code R612‐
1‐10(D) (current version at Utah Admin. Code R612‐200‐7(D))); see
also Utah Code Ann. § 34A‐2‐413(1)(c) (LexisNexis 2011) (providing
that the employee’s permanent total disability determination
depends in part on whether “the employee cannot perform
other work reasonably available, taking into consideration the
employee’s: (A) age; (B) education; (C) past work experience;
(D) medical capacity; and (E) residual functional capacity”). Thus,
in determining that Driscoll could not be successfully rehabilitated
under the Return to Work Plan, the ALJ and the Commission
necessarily considered that Driscoll was incapable of returning to
regular, steady work given his physical limitations, education, and
job skills. Accordingly, we do not agree that the Commission failed
to consider Utah Code section 34A‐2‐413(6)(a)(ii) in concluding that
Driscoll was entitled to benefits, nor do we agree that Driscoll’s
benefits are terminated by operation of section 34A‐2‐413(6)(a)(ii)
absent a successful challenge to the Commission’s finding that
rehabilitation is not possible.

III. The ALJ’s Findings of Fact

¶17 A&B next argues that the ALJ erred by neglecting to
consider the evidence that Driscoll is capable of returning to
regular, steady work. In support of this argument, A&B presents
its vocational expert’s testimony that Driscoll had been successfully
rehabilitated because he had been “‘prepared to return to work’”
through completing his schooling and because “Driscoll ‘has an
associate degree, he has virtually two years of experience for job
qualifications purposes, and his skill set has been enhanced.’” A&B
also maintains that the ALJ failed to acknowledge the “glowing”

20110923‐CA 9 2013 UT App 230
 A&B Mechanical v. Labor Commission

letters from Driscoll’s instructors concerning his employability and
Driscoll’s own acknowledgment of his newly acquired skills.
Finally, A&B contends that the ALJ incorrectly relied on medical
restrictions given four years earlier to conclude that the only job
offered to Driscoll did not conform to those restrictions.

¶18 To the extent that A&B challenges the ALJ’s factual findings
as adopted by the Commission, we may grant relief only if the
findings are “not supported by substantial evidence when viewed
in light of the whole record before the court.” Utah Code Ann.
§ 63G‐4‐403(4)(g) (LexisNexis 2011); Murray v. Labor Comm’n, 2013
UT 38, ¶¶ 19–20. To successfully challenge an agency’s factual
findings, “the party challenging the factual findings must marshal
all of the evidence and demonstrate that, despite the facts
supporting the decision, the findings are not supported by
substantial evidence.” Martinez v. Media‐Paymaster Plus/Church of
Jesus Christ of Latter‐day Saints, 2007 UT 42, ¶ 36, 164 P.3d 384
(citation and internal quotation marks omitted).

¶19 A&B has merely presented the evidence in favor of its
position that Driscoll was able to return to regular, steady work.
However, if an agency’s findings of facts are supported by
substantial evidence, we will not overturn those findings “even if
another conclusion from the evidence is permissible.” Hurley v.
Board of Review of the Indus. Comm’n, 767 P.2d 524, 526–27 (Utah
1988). Substantial evidence in the record supports the
Commission’s and the ALJ’s determination that Driscoll could not
be successfully rehabilitated. See Utah Code Ann. § 34A‐2‐413(5)(f).
Driscoll diligently sought employment over the course of four
years and completed the schooling necessary for a certificate and
a degree. Yet, “through no fault of either party,” the Return to
Work Plan did not succeed because Driscoll could not find work in
his field that complied with his medical restrictions. Given that
A&B has not demonstrated a “fatal flaw in the evidence”
supporting the Commission’s finding that Driscoll could not be
successfully rehabilitated, see Martinez, 2007 UT 42, ¶ 17 (citation
and internal quotation marks omitted), we decline to disturb the
Commission’s factual findings.

20110923‐CA 10 2013 UT App 230
 A&B Mechanical v. Labor Commission

IV. Due Process

¶20 Finally, A&B argues that the Commission’s excessive delay
in issuing its order affirming the ALJ’s decision violated its due
process rights. “Due process challenges are questions of law that
we review applying a correction of error standard.” Utah Auto
Auction v. Labor Commʹn, 2008 UT App 293, ¶ 9, 191 P.3d 1252
(citation and internal quotation marks omitted).

¶21 A&B contends that its due process rights were violated
because the Commission issued its written decision on A&B’s
Motion to Review twenty‐seven months after A&B filed the
motion. However, A&B merely describes when the order was
issued in relationship to other events in the case, and then
concludes that this was an “excessive delay” that caused A&B
financial harm and “may have delayed” its ability to reexamine
Driscoll’s case in the future. See Utah Code Ann. § 34A‐2‐413(10)
(LexisNexis 2011) (providing for an employer to periodically
reexamine a permanent total disability claim). A&B does not
undertake to explain how this delay was unreasonable and what
steps it took to protect its due process rights, or direct this court to
any legal authority upon which it could properly evaluate A&B’s
claim.2 Our rules clearly state that a petitioner’s brief must “contain
the contentions and reasons of the [petitioner] with respect to the
issues presented . . . with citations to the authorities, statutes, and
parts of the record relied on.” Utah R. App. P. 24(a)(9). A&B has
failed to develop its argument on this issue and thus has failed to

2. Notably, A&B does not explain how its claim is not foreclosed by
Olsen v. Labor Commission, 2011 UT App 70, 249 P.3d 586, in which
we addressed a claimant’s argument that the Commission violated
due process by not issuing a written decision for thirty‐eight
months. See id. ¶ 26. We observed that, while the Commission is
required to issue a decision “‘[w]ithin a reasonable time after the
hearing,’” id. (alteration in original) (quoting Utah Code Ann.
§ 63G‐4‐208(1) (LexisNexis 2008)), a party that fails to bring the
issue of delay to the Commission’s attention cannot claim on
judicial review that its due process rights were violated, see id.

20110923‐CA 11 2013 UT App 230
 A&B Mechanical v. Labor Commission

carry its burden of demonstrating error. See State v. Thomas, 961
P.2d 299, 305 (Utah 1998).

V. Conclusion

¶22 The ALJ and the Commission reasonably interpreted the
ALJ’s own order in not requiring Driscoll to reestablish his
eligibility for total disability. The ALJ had previously determined
that Driscoll was entitled to permanent total disability benefits, and
the stipulated orders contemplated that Driscoll would file a
request for permanent benefits upon the failure of the Return to
Work Plan. A&B has not shown that the Commission
misinterpreted or misapplied the governing statutes or regulations,
nor has it shown that the Commission’s determination that
rehabilitation was not possible was unsupported by substantial
evidence. Accordingly, we decline to disturb the Commission’s
decision.

20110923‐CA 12 2013 UT App 230