Murray v. Utah Labor Commission

This opinion is subject to revision before final
publication in the Pacific Reporter

2013 UT 38

IN THE

SUPREME COURT OF THE STATE OF UTAH

MICHAEL R. MURRAY,
Petitioner,
v.
UTAH LABOR COMMISSION, UTAH STATE PARKS AND RECREATION,
and WORKERS COMPENSATION FUND,
Respondents.

No. 20120232
Filed June 28, 2013

On Certiorari from the Utah Court of Appeals

Attorneys:
Benjamin T. Davis, Salt Lake City,
for petitioner
James R. Black, Salt Lake City, Jamison D. Ashby, Sandy,
for respondents

CHIEF JUSTICE DURRANT authored the opinion of the Court,
in which ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, JUSTICE PARRISH, and JUSTICE LEE joined.

CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 We granted certiorari in this case to determine two
questions. First, we must decide whether the court of appeals
erred in reviewing a Labor Commission decision, which applied
law to fact, for an “abuse of discretion” rather than as a mixed
question of law and fact. Second, we must decide whether the
court of appeals erred in ruling that an employee who injured his
back when a small wave unexpectedly rocked his boat failed to
establish that it was his act of steadying himself, rather than a
preexisting back condition, that was the legal cause of his injury.
We conclude that the court of appeals should have reviewed the
Labor Commission’s decision in this case as a traditional mixed
 MURRAY v. LABOR COMMISSION
Opinion of the Court
question of law and fact. But we ultimately uphold the court of
appeals’ conclusion that the employee failed to establish legal
cause.
BACKGROUND
¶2 The parties do not dispute the facts in this case. On
July 13, 2008, Petitioner Michael R. Murray was working as a park
ranger for Utah State Parks and Recreation. At approximately
11:00 a.m. that day, Mr. Murray was preparing to go on boating
patrol at Red Fleet State Park. The patrol boat was tied by both the
bow and the stern to the end of a dock that extended thirty-five to
forty feet into the water. The boat and dock were located in an
area that was “usually . . . a no-wake zone.” Mr. Murray started
the boat and untied the bow. He then went to untie the stern. The
cable at the stern was locked with a combination lock. Mr. Murray
bent over the edge of the boat, the height of which was slightly
above his knees, at a thirty-five to forty degree angle. He was
holding the cable and the lock in his left hand and entering the
combination with his right. At the time, Mr. Murray was wearing
a fifteen-pound service belt and a one-pound inflatable life jacket.
¶3 While he was in this position, a five- to six-inch wave
from another boat’s wake unexpectedly rocked the patrol boat,
causing Mr. Murray to lose his balance. Mr. Murray steadied
himself by shifting his right foot against the side of the boat,
grabbing the side of the boat with his right hand, and twisting his
body. He immediately felt a slight pain in his lower back, but he
nevertheless went on patrol. The pain worsened over the next two
to three hours to the point that Mr. Murray was forced to leave
work early. The pain continued to increase over the next several
days, and he sought medical attention.
¶4 On September 29, 2008, Mr. Murray filed a worker’s
compensation claim with the Utah Labor Commission
(Commission). The Administrative Law Judge (ALJ) denied Mr.
Murray’s claim. She found that the accident aggravated a
preexisting lower-back condition that had been “mostly
asymptomatic” prior to the accident. She concluded that although
the “unexpected” wave was the factual cause of Mr. Murray’s
injury, it was not the legal cause because it did not cause him “to
go through any unusual exertions. He lost his balance a little but
did not drop the lock or fall and was able to steady himself
easily.”

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¶5 Mr. Murray petitioned the Commission to review the
ALJ’s decision. The Commission affirmed, reasoning that “simply
losing and regaining one’s balance while bending over slightly,
even if unexpected, is not an unusual or extraordinary exertion.”
¶6 Mr. Murray appealed the Commission’s order to the Utah
Court of Appeals.1 The court reviewed the Commission’s order
under an “abuse of discretion” standard,2 concluding that “the
Legislature granted the Labor Commission discretion to apply the
law to the cases before it.”3 Applying that standard, the court
ruled that the Commission’s determination that Mr. Murray failed
to prove legal causation was “reasonable” and affirmed.4
Mr. Murray filed a timely petition for certiorari, which we
granted. We have jurisdiction pursuant to section 78A-3-102(3)(a)
of the Utah Code.
STANDARD OF REVIEW
¶7 “On certiorari, we review for correctness the decision of
the court of appeals, not the decision of the [agency].”5 And “[t]he
correctness of the court of appeals’ decision turns, in part, on
whether it accurately reviewed the [agency’s] decision under the
appropriate standard of review.”6
ANALYSIS
¶8 We first consider whether the plain language of the Utah
Administrative Procedures Act (UAPA)7 necessarily incorporates
standards of review so as to preclude application of our well-
established approach to mixed questions of law and fact. Second,
we consider whether the Commission’s application of the law to
the facts of Mr. Murray’s case involved discretion, which would

1 Murray v. Labor Comm’n, 2012 UT App 33, ¶¶ 1, 4, 271 P.3d
192.
2 Id. ¶¶ 9–21.
3 Id. ¶ 14.
4 Id. ¶¶ 39–41.
5 State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096.
6 Id.
7 UTAH CODE §§ 63G-4-101 to -601.

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Opinion of the Court
qualify it for an “abuse of discretion” standard of review on
appeal. Finally, we consider whether the court of appeals erred in
concluding that Mr. Murray failed to establish that his work-
related accident, rather than his preexisting back condition, was
the legal cause of his injury.
I. UNDER A PLAIN-LANGUAGE INTERPRETATION OF UAPA,
SECTION 63G-4-403 INCORPORATES STANDARDS OF
REVIEW FOR SOME, BUT NOT ALL, AGENCY ACTION AND
DOES NOT FORECLOSE OUR TRADITIONAL APPROACH
FOR DETERMINING THE APPROPRIATE STANDARD OF
REVIEW
¶9 The court of appeals relied on UAPA to determine which
standard of review applies in this case,8 concluding that, under
our UAPA precedent, “questions of law and mixed questions of
law and fact are generally reviewed for correctness.”9 It also
recognized an exception to this correctness standard that applies
when “the [L]egislature has either explicitly or implicitly granted
discretion to the agency to interpret or apply the law.”10 Relying
on this approach, the court determined that when a statute
delegates discretion to an agency, it must review the agency’s
action for an abuse of discretion.11
¶10 Mr. Murray contends that we have effectively overruled
the approach relied on by the court of appeals. He points out that
in Drake v. Industrial Commission12 and Salt Lake City Corp. v. Labor
Commission,13 which both involved Commission decisions, we
employed our traditional approach for determining the
appropriate standard of review. Under this approach, we first
characterize the “issue as either a question of fact, a question of
law, or a mixed question requiring application of the law to the
facts” and then apply the corresponding level of deference to the

8 Murray v. Labor Comm’n, 2012 UT App 33, ¶ 11, 271 P.3d 192.
9 Id. ¶ 12.
10 Id. (internal quotation marks omitted).
11 Id.
12 939 P.2d 177 (Utah 1997).
13 2007 UT 4, 153 P.3d 179.

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Opinion of the Court
decision under review.14 Mr. Murray claims that we should follow
the same approach here and review his case as a traditional mixed
question of law and fact.
¶11 The court of appeals faced a difficult decision in this case
given our inconsistent precedent on UAPA standards of review.
The court was certainly correct that UAPA applies to
Mr. Murray’s case. Because Mr. Murray seeks relief from the
Commission’s order denying him compensation benefits, we
agree that UAPA governs our review of his claims on appeal.15
But under the interpretation of UAPA we announce below, we
disagree that UAPA necessarily forecloses our traditional
approach for determining the appropriate standard of review.
¶12 In Morton International, Inc. v. Tax Commission, we stated
that UAPA “incorporates standards that appellate courts are to
employ when reviewing allegations of agency error.”16 We
derived these standards from what is now section 63G-4-403 of
UAPA, which addresses judicial review of formal adjudicative
proceedings.17 Specifically, we considered what standard of
review UAPA requires for an agency’s interpretation or
application of the law under what is now section 63G-4-
403(4)(d).18 We concluded that UAPA incorporated a correctness
standard for an agency’s “interpretation or application of a
statutory term.”19 We further concluded that the only exceptions

14 Drake, 939 P.2d at 181.
15 UTAH CODE § 63G-4-105(1) (“The procedures for agency
action, agency review, and judicial review contained in this
chapter are applicable to all agency adjudicative proceedings
commenced by or before an agency on or after January 1, 1988.”).
16 814 P.2d 581, 584 (Utah 1991), superseded by statute, UTAH
CODE § 59-1-610(1)(b), with regard to administrative decisions by the
Tax Commission, as recognized in LPI Servs. v. McGee, 2009 UT 41,
¶ 7, 215 P.3d 135.
17 Id.
18 Id. at 588.
19 Id.; see also SEMECO Indus., Inc. v. Tax Comm’n, 849 P.2d
1167, 1172 (Utah 1993) (Durham, J., dissenting) (discussing
Morton’s analysis of subsection 4(d)).

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Opinion of the Court
to this correctness standard are those instances where the
Legislature has either explicitly or implicitly delegated discretion
to an agency to interpret or apply the law.20 If an agency indeed
has such discretion, then under our interpretation of UAPA in
Morton, we must review the agency’s action for an abuse of
discretion.21
¶13 As the court of appeals recognized in its opinion in this
case, we have a significant amount of precedent applying
Morton’s interpretation of UAPA.22 But we took a different
approach to reviewing agency applications of law to fact
beginning with Drake v. Industrial Commission. In Drake, we
analyzed the “special errand” rule to determine whether an
employee was injured within the scope and course of her
employment for purposes of receiving benefits under the Workers
Compensation Act.23 In selecting a standard of review, we turned
to State v. Pena, a criminal case that analyzed the level of deference
appropriate for a trial court’s determination of a mixed question
of law and fact.24 Relying on Pena, we recognized that “[w]hether
an employee was injured while on a special errand is . . . [a]
highly fact-sensitive [question of law].”25 Thus, we stated it “is a
question that we cannot profitably review de novo in every case
because we cannot hope to work out a coherent statement of the
law through a course of such decisions.”26 We accordingly applied

20 Morton, 814 P.2d at 588.
21 Id.; see also SEMECO Indus., Inc., 849 P.2d at 1172 (Durham,
J., dissenting) (discussing subsection 4(d)’s interaction with
subsection 4(h)(i) and concluding that “[i]f the specific agency
interpretation or application was an exercise of the agency’s
statutorily delegated discretion, then under subsection (4)(h)(i) . . .
the agency’s interpretation or application of law should receive
intermediate deference”).
22 Murray, 2012 UT App 33, ¶ 25.
23 Drake, 939 P.2d at 179–81.
24 Id. at 181 (citing State v. Pena, 869 P.2d 932, 936 (Utah 1994)).
25 Id. at 182.
26 Id. (internal quotation marks omitted).

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a standard of review affording some deference to the
Commission’s decision.27
¶14 We later decided Salt Lake City Corp. v. Labor
Commission.28 There, we relied on Drake for selecting a standard of
review for a Commission decision applying the “going and
coming” rule to determine if an employee was injured within the
scope and course of employment.29 We characterized the standard
of review applied in Drake as “conditionally deferential” and
concluded that, like “special errand” cases, Commission decisions
concerning the “going and coming” rule also required conditional
deference.30 We accordingly adopted and applied Drake’s
standard of review in Salt Lake City Corp.31
¶15 We decided both Drake and Salt Lake City Corp. well after
UAPA became applicable in January 1988.32 Yet, in both cases, we
failed to mention UAPA or explicitly overrule our interpretation
of UAPA in Morton.33 In light of this conflicting precedent on
UAPA standards of review, we take the opportunity to clarify our
interpretation of UAPA and the role it plays in our selection of a
standard of review for agency decisions.

27 Id.
28 2007 UT 4.
29 Id. ¶¶ 13–18.
30 Id. ¶ 15.
31 Id.
32 UTAH CODE § 63G-4-105(1). We decided Drake in 1997 and
Salt Lake City Corp. in 2007.
33 In Drake, we recognized in a footnote that applying “the
standard enunciated in Pena . . . to an agency’s application of the
law to a particular set of facts is a departure from our prior
decisions.” 939 P.2d at 181 n.6. We further stated that “we believe
the Pena standard is a more accurate measure of the degree of
deference to be given to an agency . . . rather than using
undefinable labels such as ‘reasonableness.’” Id. But the case we
cited as an example of our “prior decisions” is a pre-UAPA case.
See id. (citing Tax Comm’n v. Indus. Comm’n, 685 P.2d 1051 (Utah
1984)).

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¶16 Our decision in Morton seems to take for granted that
section 63G-4-403 necessarily “incorporates standards that
appellate courts are to employ when reviewing allegations of
agency error.”34 Whether section 63G-4-403, in fact, incorporates
standards of review presents a question of statutory
interpretation. “When interpreting a statute, our goal is to give
effect to the legislature’s intent and purpose.”35 “We ascertain the
legislature’s intent by looking to the statute’s plain
meaning . . . .”36 “Often, statutory text may not be plain when
read in isolation, but may become so in light of its linguistic,
structural, and statutory context.”37 “For this reason, our
interpretation of a statute requires that each part or section be
construed in connection with every other part or section so as to
produce a harmonious whole.”38 Finally, “[i]f the language of the
statute yields a plain meaning that does not lead to an absurd
result, the analysis ends.”39
¶17 Section 63G-4-403 governs judicial review of “final
agency action resulting from formal adjudicative proceedings.”40
Subsection (4) allows an appellate court to “grant relief only if . . .
it determines that a person seeking judicial review has been
substantially prejudiced” by certain agency actions. Section 63G-4-
403(4)(a) through (h) identifies those agency actions:
(a) the agency action, or the statute or rule on which
the agency action is based, is unconstitutional on its
face or as applied;
(b) the agency has acted beyond the jurisdiction
conferred by any statute;

34 Morton, 814 P.2d at 584.
35 Grappendorf v. Pleasant Grove City, 2007 UT 84, ¶ 9, 173 P.3d
166.
36 State v. Bohne, 2002 UT 116, ¶ 15, 63 P.3d 63.
37 State v. J.M.S. (In re J.M.S.), 2011 UT 75, ¶ 13, 280 P.3d 410
(internal quotation marks omitted).
38 Id. (internal quotation marks omitted).
39 Carranza v. United States, 2011 UT 80, ¶ 8, 267 P.3d 912.
40 UTAH CODE § 63G-4-403(1).

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(c) the agency has not decided all of the issues
requiring resolution;
(d) the agency has erroneously interpreted or
applied the law;
(e) the agency has engaged in an unlawful
procedure or decision-making process, or has failed
to follow prescribed procedure;
(f) the persons taking the agency action were
illegally constituted as a decision-making body or
were subject to disqualification;
(g) the agency action is based upon a determination
of fact, made or implied by the agency, that is not
supported by substantial evidence when viewed in
light of the whole record before the court;
(h) the agency action is:
(i) an abuse of the discretion delegated to the
agency by statute;
(ii) contrary to a rule of the agency;
(iii) contrary to the agency’s prior practice,
unless the agency justifies the inconsistency by
giving facts and reasons that demonstrate a fair
and rational basis for the inconsistency; or
(iv) otherwise arbitrary or capricious.
¶18 While the above provisions clearly set forth and limit the
types of agency actions for which appellate courts may grant
relief, they do not expressly mandate standards of review courts
must employ when reviewing those agency actions. The
Legislature does not exhibit a clear intent—in section 63G-4-403 or
UAPA generally41—to completely displace our traditional
approach for selecting standards of review. Rather, by declining
to expressly mandate standards of review for each type of agency
action for which we may grant relief, the Legislature suggests the
opposite intent to leave much of the normal appellate process in

41 Section 63G-4-102, entitled “Scope and applicability of
chapter,” states only that “the provisions of this chapter apply to
every agency of the state and govern . . . judicial review of the
[agency] action.” Id. § 63G-4-102(1). Section 63G-4-105, entitled
“Transition procedures,” merely states that UAPA displaces other
“[s]tatutes and rules governing . . . judicial review” of agency
action after January 1, 1988. Id. § 63G-4-105(1)–(2).

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Opinion of the Court
place.42 Thus, the plain language of section 63G-4-403 clearly sets
forth the type of agency actions for which we may grant relief, but
it does not expressly mandate the standards of review we must
employ when reviewing those actions.
¶19 Certain provisions of section 63G-4-403(4) do, however,
imply a standard of review by the way in which the Legislature
characterized the agency action. Section 63G-4-403(4)(g), for
example, falls into this category. That provision allows us to grant
relief for “agency action [that] is based upon a determination of
fact . . . that is not supported by substantial evidence.”43 While this
provision does not explicitly require a certain standard of review,
it characterizes the agency action in such a way that implies a
“substantial evidence” standard. This is because we can grant
relief under this provision only after reviewing the agency’s
determination of fact for a lack of substantial evidence. Sections
63G-4-403(h)(i), (h)(iii), and (h)(iv) also fall into this category.
¶20 Importantly, the Legislature’s characterization of some
agency actions in terms of a standard of review is further evidence
that it did not intend to completely displace our traditional
standard of review framework. This is because the Legislature,
while implying a standard of review for some agency actions, did
not attempt to define what that standard requires. Thus, even
where section 63G-4-403(4)(g) implies a “substantial evidence”
standard on appeal, for example, we must look outside UAPA to
determine what that standard means.
¶21 But most agency actions listed in section 63G-4-403(4) do
not imply a standard of review. Absent this implication, we
conclude that the Legislature intended our traditional standards
of review to apply. This category of agency action includes section
63G-4-403(4)(d), which allows us to grant relief when an “agency

42 See id. § 63G-4-403(2)(a) (directing “the petitioner [to] file a
petition for review of agency action with the appropriate
appellate court in the form required by the appellate rules of the
appropriate appellate court”); id. § 63G-4-403(2)(b) (stating that
“[t]he appellate rules of the appropriate appellate court shall
govern all additional filings and proceedings in the appellate court”
(emphasis added)).
43 Id. § 63G-4-403(4)(g).

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has erroneously interpreted or applied the law.” We stated in
Morton that the term “erroneous” connotes a correctness standard
for both interpretations and applications of law.44 But we now
conclude that subsection (4)(d) does not imply a standard of
review. While that provision empowers courts to grant relief
when an agency commits an “error” in interpreting or applying
the law, the term “erroneous” in this context does not imply a
standard of review. Rather, the term simply means “mistaken,”
indicating that we may grant relief when an agency
misinterpreted or misapplied the law.45 Sections 63G-4-403(4)(a)–
(f) and (h)(ii) fall into this category as well. For this category of
agency actions, we are free to apply our traditional approach for
selecting an appropriate standard of review.
¶22 Based on the above plain-language analysis, we conclude
that section 63G-4-403 does not—contrary to our decision in
Morton46—incorporate standards of review for each agency action
listed in subsection (4). Accordingly, we overrule Morton as far as
it is inconsistent with this conclusion. Going forward, the
appropriate standard of review of final agency actions will
depend on the type of action in question. In some instances, as
discussed above, section 63G-4-403 will have characterized the
action in such a way that the applicable standard of review will be
obvious. But even there, we must turn to our case law to
determine how that standard applies. For other agency actions,
the applicable standard of review will depend on the nature of the
agency action and whether it can be characterized as a question of
law, a question of fact, or a mixed question of law and fact.47
Below, we apply this analysis to Mr. Murray’s case to determine
the appropriate standard of review on appeal.

44 Morton, 814 P.2d at 587.
45 See WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 423
(1988) (defining “erroneous” as “containing or characterized by
error . . . [or] mistaken”).
46 Morton, 814 P.2d at 584.
47 See, e.g., Dep’t of Admin. Servs. v. Pub. Serv. Comm’n, 658 P.2d
601, 608–10 (Utah 1983) (discussing the three traditional standards
of review applicable to allegations of agency error).

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II. WE CONCLUDE THAT MR. MURRAY’S CLAIM PRESENTS
A TRADITIONAL MIXED QUESTION OF LAW AND FACT
AND THAT, ACCORDINGLY, THE COMMISSION’S
AUTHORITY TO APPLY THE LAW IN THIS CASE IS NOT A
DISCRETIONARY ACTION WARRANTING AN “ABUSE OF
DISCRETION” STANDARD OF REVIEW UNDER UAPA
¶23 The appropriate standard of review in this case depends
on the type of agency action alleged to be erroneous and whether
that action incorporates a specific standard of review under
section 63G-4-403(4) of UAPA. Mr. Murray contends that the
Commission misapplied the Utah Workers’ Compensation Act,
specifically section 34A-2-401 of the Utah Code,48 to the facts of
his case. His claim for relief accordingly falls under section 63G-4-
403(4)(d), which requires us to determine whether the
Commission “erroneously . . . applied the law.” We concluded
above that subsection (4)(d) is not the type of agency action that is
characterized in such a way as to imply a specific standard of
review. We are thus free to apply our traditional approach in
selecting the appropriate standard of review for Mr. Murray’s
claim.
¶24 The first question under this approach is whether the
Commission’s decision “qualifies as a finding of fact, a conclusion
of law, or a determination of a mixed question of law and fact.”49
Mixed questions “involv[e] application of a legal standard to a set
of facts unique to a particular case.”50 Indeed, in the agency
context, we have stated that we “use[] the terms mixed question
of fact and law and application of the law interchangeably.”51
Accordingly, Mr. Murray’s claim that the Commission misapplied
the law to the facts of his case presents a traditional mixed
question of law and fact.

48 This statute provides benefits for employees injured “by
accident arising out of and in the course of the employee’s
employment.” UTAH CODE § 34A-2-401(1).
49 Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35,
¶ 40, __P.3d__.
50 Id. ¶ 42.
51Morton Int’l, Inc. v. Tax Comm’n, 814 P.2d 581, 586 n.23 (Utah
1991).

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¶25 But the court of appeals determined that section 34A-1-
301 of the Labor Commission Act “constitutes an express grant of
authority” for the Commission “to apply the law in workers’
compensation cases.”52 That provision provides that “[t]he
commission has the duty and the full power, jurisdiction, and
authority to determine the facts and apply the law in this chapter
or any other title or chapter it administers.” Thus, the court of
appeals concluded that under section 63G-4-403(4)(h)(i) of UAPA,
it must review the Commission’s decision to deny Mr. Murray
benefits for an abuse of discretion.53 We disagree.
¶26 The court of appeals’ decision was understandable in
light of our past decisions concluding that we review an agency’s
decision for an abuse of discretion when the Legislature has
granted the agency discretion to interpret or apply the law.54 We
last considered a delegation of discretion in LPI Services v.
McGee.55 There we recognized that “[t]he [L]egislature may grant
an agency discretion, either explicitly or implicitly, to interpret
specific statutory terms.”56 We have found implicit delegations of
discretion where “the operative terms of a statute are broad and
generalized” or “there is more than one permissible reading of the
statute” and no basis in our rules of construction to prefer one
interpretation to another.57
¶27 We have not clearly articulated what constitutes an
explicit delegation of discretion, although we have offered
examples. In LPI Services, we suggested that the Legislature
explicitly delegated discretion by mandating that “[t]he [Labor]
[C]ommission shall establish rules regarding part-time work and
offset” to account for a permanently disabled employee’s income

52 Murray v. Labor Comm’n, 2012 UT App 33, ¶ 15, 271 P.3d 192.
53 Id. ¶ 27.
54 See, e.g., Morton, 814 P.2d at 587 (analyzing UTAH CODE
§ 63G-4-403(h)(i)).
55 2009 UT 41, 215 P.3d 135.
56 Id. ¶ 8.
57 Id. ¶¶ 8, 9 (internal quotation marks omitted).

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from medically appropriate part-time work.58 The court of appeals
declined, however, to limit explicit delegations of discretion to
only those instances where the Legislature directs an agency to
define a statutory term by regulation.59 It instead adopted a
broader approach, concluding that “an explicit grant of discretion
can be found when a statute specifically authorizes an agency to
interpret or apply statutory language.”60 The court of appeals has
explained that “[w]hen the [L]egislature focuses on a specific
statutory term and delegates to the agency the duty to either
interpret or apply the term, . . . the agency necessarily is required
to interpret the statutory language.”61
¶28 The above approach to identifying delegations of
discretion has proved difficult to apply.62 And we now conclude
that it is inconsistent with the interpretation of section 63G-4-
403(4) announced above. Specifically, under the plain language of
section 63G-4-403(4), it is inaccurate to say that “authority” means
“discretion,” as the court of appeals has done. There is no
question that section 34A-1-301 of the Labor Commission Act
“constitutes an express grant of authority” for the Commission “to
apply the law in workers’ compensation cases.”63 But this grant of

58Id. ¶ 8 (first alteration in original) (internal quotation marks
omitted).
59 King v. Indus. Comm’n, 850 P.2d 1281, 1291 (Utah Ct. App.
1993), superseded by statute, UTAH CODE § 34A-1-301, on other
grounds, as recognized in Murray, 2012 UT App 33, ¶¶ 17–18.
60 Id. at 1287.
61 Employers’ Reinsurance Fund v. Indus. Comm’n, 856 P.2d 648,
655 (Utah Ct. App. 1993) (Billings & Russon, JJ., concurring in the
result) (articulating the holding of the court as to the standard of
review), superseded by statute, UTAH CODE § 34A-1-301, on other
grounds, as recognized in Murray, 2012 UT App 33, ¶¶ 17–18.
62 See, e.g., Niederhauser Ornamental & Metal Works Co. v. Tax
Comm’n, 858 P.2d 1034, 1037 (Utah Ct. App. 1993) (recognizing
that “[d]iscerning an implied or explicit grant of discretion from
the governing statute is key” to selecting the appropriate standard
of review but complaining that doing so “has become an
increasingly complex endeavor”).
63 Murray, 2012 UT App 33, ¶ 15.

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authority does not turn an agency’s application or interpretation
of the law into the type of action that would warrant an “abuse of
discretion” standard of review under section 63G-4-403(4)(h)(i).
¶29 We have already recognized in past decisions that “an
administrative grant to administer a statute is not to be confused
with a grant of discretion to interpret the statute.”64 This is
because “all agencies are necessarily granted authority by statute
to administer portions of the code.”65 We now go a step further
and conclude that, for an “abuse of discretion” standard to apply
on appeal, the agency action under review must involve
“discretion.” Only then can we properly review the action for an
“abuse of discretion,” as required by the plain language of section
63G-4-403(4)(h)(i).
¶30 This conclusion requires us to determine whether the
Commission’s decision in this case—a mixed finding of law and
fact—is the type of decision that involves discretion. While the
term “discretion” within the law defies precise definition,66 the
Legislature’s use of the term in section 63G-4-403(4)(h)(i) requires
us to assign it at least some characteristics. Commentators have
recognized that a basic feature of discretion is “choice.”67 That is, a
discretionary decision involves a question with a range of
“acceptable” answers, some better than others, and the agency or
trial court is free to choose from among this range without regard
to what an appellate court thinks is the “best” answer.68 We agree

64 Airport Hilton Ventures, Ltd. v. Tax Comm’n, 1999 UT 26, ¶ 7
n.4, 976 P.2d 1197 (citing approvingly to Belnorth Petroleum Corp. v.
Tax Comm’n, 845 P.2d 266, 268 n.5 (Utah Ct. App. 1993)).
65 Belnorth Petroleum Corp., 845 P.2d at 268 n.5.
66 See State v. Pena, 869 P.2d 932, 937 (Utah 1994) (stating that
“the term ‘abuse of discretion’ has no tight meaning”); see also
Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed
from Above, 22 SYRACUSE L. REV. 635, 635 (1971) (“To speak of
discretion in relation to law is to open a thousand doorways to
discussion.”).
67 E.g., Ronald R. Hofer, Standards of Review—Looking Beyond
the Labels, 74 MARQ. L. REV. 231, 246 (1991).
68 See Hofer, supra ¶ 30 n.67, at 246 (characterizing
discretionary decisions “as involving not right or wrong, but
(continued)
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 MURRAY v. LABOR COMMISSION
Opinion of the Court
with this general characterization of discretion. Accordingly, we
conclude that whenever the Legislature directs an agency to
engage in this type of decision-making, regardless of whether it
does so explicitly or implicitly, it has delegated discretion to the
agency within the meaning of section 63G-4-403(4)(h)(i).
¶31 An example of such a delegation can be found in section
54-3-2 of the Utah Code relating to schedules of utility rates and
classifications. That section requires public utilities to file with the
Public Service Commission (PSC) “schedules showing all rates,
tolls, rentals, charges, and classifications collected or enforced.”69
It further provides that “[t]he commission shall have power, in its
discretion, to determine and prescribe, by order, changes in the
form of the schedules referred to in this section as it may find
expedient.”70 Under this provision, the PSC has both authority
and discretion to change the form of schedules. Its authority
derives from the Legislature’s grant of “power” while its
discretion comes from the type of decision-making the Legislature
directed the PSC to engage—not the phrase “in its discretion.”
¶32 In order to properly “determine and prescribe, by order,
changes in the form of the schedules,” the PSC need only find it
“expedient” to do so. There are a range of “acceptable” fact
scenarios that the PSC could either accept or reject as being
expedient without risking reversal by an appellate court. And the
appellate court will review the PSC’s discretionary decision for an
“abuse of discretion” to ensure that it falls within the bounds of
reasonableness and rationality.71 Reasonableness, in turn, is

better or worse” (internal quotation marks omitted)); Maurice
Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D. 173,
176 (1978) (stating that, for discretionary decisions, “appellate
courts will allow the trial judge wide scope for decision, free from
normal restraints that apply to legal determinations” and that
“[t]he trial judge acting in discretion is granted a limited right to
be wrong, by appellate court standards, without being reversed”).
69 UTAH CODE § 54-3-2(1).
70 Id. § 54-3-2(3).
71 See generally Dep’t of Admin. Servs. v. Pub. Serv. Comm’n, 658
P.2d 601, 610–11 (Utah 1983).

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essentially a test for logic and completeness rather than the
correctness of the decision.72
¶33 Admittedly, our characterization of discretion is broad
and in need of refinement through application in future cases. But
it adequately demonstrates that the Commission’s action in this
case did not involve discretion. As we have already stated, a
mixed question arises when an agency or lower court must apply
“a legal standard to a set of facts unique to a particular case.”73
Importantly, the question of whether a set of facts falls within a
legal standard is itself a question of law.74 And like all questions
of law, the question of whether certain facts fulfill a legal standard
has a single “right” answer in terms of the trajectory of the law.75
Our precedent on mixed questions simply reflects the idea that
we, as an appellate court, are not always in the best position to say
what that “right” answer is.76 Thus, in the context of mixed
questions, we sometimes afford deference to a trial court’s
decision as a matter of institutional competency.77 But the trial

72 Id. at 611 (discussing the “abuse of discretion” standard and
stating that “[t]he test of rationality may be simply a matter of
logic or completeness”).
73 In re Adoption of Baby B., 2012 UT 35, ¶ 42.
74 See Drake v. Indus. Comm’n, 939 P.2d 177, 181 (Utah 1997)
(recognizing “that the legal effect of . . . facts is the province of the
appellate courts, and no deference need be given a trial court’s
resolution of such questions of law” (internal quotation marks
omitted)); see also Hofer, supra ¶ 30 n.66, at 246 (“In a mixed
question, the usual formulation describing the nexus between fact
and law is that whether the facts fulfill a particular legal standard
is itself a question of law.” (internal quotation marks omitted)).
75 Hofer, supra ¶ 30 n.66, at 236–37 (characterizing “law” as
“rules and standards [that] optimally should be generally and
uniformly applicable to all persons of like qualities and status and
in like circumstances, and should be capable of being predicated
in advance and which being so predicated, await proof of the facts
necessary for their application” (footnote omitted) (internal
quotation marks omitted)).
76 See In re Adoption of Baby B., 2012 UT 35, ¶ 42.
77 State v. Levin, 2006 UT 50, ¶ 19, 144 P.3d 1096.

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court does not have discretion to reach anything other than the
“right” answer. In other words, “discretion” and “deference” are
distinct concepts.78
¶34 Accordingly, we conclude that Mr. Murray’s claim
constitutes a traditional mixed question of law and fact and that
the Commission’s authority to apply the law in this case is not the
type of discretionary action that warrants an “abuse of discretion”
standard of review under our plain-language interpretation of
UAPA.
III. ALTHOUGH THE COURT OF APPEALS APPLIED THE
WRONG STANDARD OF REVIEW IN THIS CASE, ITS ERROR
WAS HARMLESS, AND WE AFFIRM ITS DECISION TO
UPHOLD THE COMMISSION’S ORDER RELATING TO
MR. MURRAY’S FAILURE TO ESTABLISH LEGAL CAUSE
¶35 Having determined that the Commission’s decision in
this case constitutes a mixed finding of law and fact, we now
consider (A) the amount of deference, if any, we should afford its
finding on appeal and (B) whether the court of appeals erred in
concluding that Mr. Murray failed to establish legal cause.
A. The Commission’s Decision was “Law-Like” and Warrants a
Nondeferential Standard of Review
¶36 The standard of review we apply when reviewing a
mixed question can be either deferential or nondeferential,
depending on the following three factors:
(1) the degree of variety and complexity in the facts
to which the legal rule is to be applied; (2) the
degree to which a trial court’s application of the
legal rule relies on “facts” observed by the trial
judge, such as a witness’s appearance and
demeanor, relevant to the application of the law that

78 We recognize that our case law has often conflated the
distinct concepts of “deference” and “discretion.” See, e.g., Drake,
939 P.2d at 182 (analyzing a mixed question and stating that “the
legal standard is one that conveys a measure of discretion to [the
Commission] when applying that standard to a given set of facts”
(alterations in original) (emphasis added) (internal quotation
marks omitted)). But we clarify that in the context of UAPA the
two concepts must be treated separately.

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Opinion of the Court
cannot be adequately reflected in the record
available to appellate courts; and (3) other policy
reasons that weigh for or against
granting [deference] to trial courts. 79

¶37 We recently analyzed these factors in In re Adoption of
Baby B.80 There we recognized that the deference granted under
the factors “rests on the notion that the mixed finding is not ‘law-
like’ because it does not lend itself to consistent resolution by a
uniform body of appellate precedent” or “is ‘fact-like’ because the
trial court is in a superior position to decide it.”81
¶38 We stated that an example of a mixed finding that
warrants deference on appeal is a finding of negligence in a
personal injury case.82 A negligence finding is not “law-like” in
that it is so factually complex that “no rule adequately addressing
the relevance of all [the] facts can be spelled out.”83 And it is “fact-
like” because a trial court will often “be affected by [its]
observation of a competing witness’s appearance and demeanor
on matters that cannot be adequately reflected in the record
available to appellate courts,” thus placing it in a superior
position to assess credibility.84
¶39 On the other hand, “a finding that a common set of
recurring law enforcement practices qualifies as a ‘reasonable’
search or seizure” would warrant nondeferential review.85 Such a
finding is “law-like” in that law enforcement and the general
public need “a consistent rule established by set appellate
precedent.”86 And it is not “fact-like” because the ultimate

79State v. Levin, 2006 UT 50, ¶ 25, 144 P.3d 1096 (internal
quotation marks omitted).
80Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35,
__P.3d__.
81 Id. ¶ 42.
82 Id. ¶ 43.
83 Id. (internal quotation marks omitted).
84 Id. (internal quotation marks omitted).
85 Id. ¶ 44.
86 Id.

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Opinion of the Court
determination will often rest on the “general reasonableness” of
the facts rather than “the demeanor or credibility” of witnesses.87
¶40 Based on the above principles, we conclude that the
Commission’s decision here that Mr. Murray failed to establish
legal cause warrants nondeferential review. Its decision was “law-
like” in that, as in the context of a reasonable search or seizure, the
Commission had to decide whether a set of facts qualified as
“unusual” for purposes of determining legal cause. It is true that
this can potentially be a fact-intensive inquiry. Indeed, we have
generally recognized that “whether or not [an] injury arises out of
or within the scope of employment depends upon the particular
facts of each case.”88 But in this case the facts are not at issue. So
the ultimate question is the legal effect of the facts rather than
witness credibility or demeanor. In the context of a legal cause
analysis for preexisting injuries, the legal effect of a given set of
facts depends on their “unusualness.” And “unusualness”—like
“reasonableness”—is an objective legal standard that we are in a
better position to analyze than the Commission.89
B. Even Applying a Nondeferential Standard of Review, We Agree with
the Court of Appeals that the Commission Correctly Concluded that Mr.
Murray’s Employment Activity was not “Unusual”
¶41 Although the court of appeals applied the wrong
standard of review in this case, its error was harmless.
“[H]armless error is an error that is sufficiently inconsequential
that there is no reasonable likelihood that it affected the outcome
of the proceedings.”90 We conclude that even if the court of
appeals had applied a nondeferential standard of review, its
decision regarding the Commission’s order would be the same.
¶42 The court of appeals concluded that Mr. Murray failed to
establish legal cause after considering “[Mr.] Murray’s exertion as
well as the working conditions that [Mr.] Murray faced at the time

87 Id.
88 Drake v. Indus. Comm’n, 939 P.2d 177, 182 (Utah 1997)
(internal quotation marks omitted).
89 Id. at 181.
90 H.U.F. v. W.P.W., 2009 UT 10, ¶ 44, 203 P.3d 943 (alteration
in original) (internal quotation marks omitted).

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Opinion of the Court
of the accident—including the outside force to which [Mr.]
Murray reacted.”91 The court recognized that the standard from
our decision in Allen v. Industrial Commission92 required
Mr. Murray to demonstrate an “unusual or extraordinary
exertion.”93 But it concluded that there was nothing unusual about
the exertion required to withstand an unexpected five- to six-inch
wave while standing “in an awkward position on an unsteady
surface [and] leaning over to unlock a cable while wearing a
fifteen-pound service belt and one-pound life jacket.”94
¶43 But Mr. Murray contends that our holding in Allen
applies only to “intentional and exertional workplace activities.”
His injury, in contrast, was “for the most part . . . the result of an
unexpected and sudden impact or force which knocked and threw
him off balance—an impact against which he mostly reacted
reflexively.” Mr. Murray argues that for injuries caused by
nonexertional factors, it does not make sense to require an
unusual exertion. We disagree with Mr. Murray’s view of the
Allen standard.
¶44 The Utah Workers’ Compensation Act provides that an
employee injured “by accident arising out of and in the course of
the employee’s employment . . . shall be paid . . . compensation for
loss sustained on account of the injury.”95 We have recognized
that “[t]his statute creates two prerequisites for a finding of a
compensable injury.”96 “First, the injury must be ‘by accident.’
Second, the language ‘arising out of [and] in the course of
employment’ requires that there be a causal connection between
the injury and the employment.”97 Only the second prerequisite—
causal connection—is at issue here.

91 Murray v. Labor Comm’n, 2012 UT App 33, ¶ 35, 271 P.3d 192.
92 729 P.2d 15 (Utah 1986).
93 Murray, 2012 UT App 33, ¶ 30 (internal quotation marks
omitted).
94 Id. ¶ 35; see also id. ¶ 36–37.
95 UTAH CODE § 34A-2-401(1).
96 Allen, 729 P.2d at 18.
97 Id.

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¶45 We have adopted a two-part test for establishing a causal
connection. Under that test, a claimant must establish that the
conditions or activities of his job were both the medical cause and
the legal cause of his injury.98 In this case, the only dispute
concerns whether Mr. Murray’s employment activities constituted
the legal cause of his injury. If an employee does not have a
preexisting condition that causally contributed to his injury, then
the medical and legal causation requirements are one and the
same, and the employee need only prove medical causation.99
¶46 But medical and legal causation diverge for an employee
with a causally contributing preexisting condition, and here it is
undisputed that Mr. Murray had such a condition. In Allen, we
held that to prove legal causation, an employee with a preexisting
condition must show that “the employment contributed
something substantial to increase the risk he already faced in
everyday life because of his condition.”100 We recognized that this
heightened showing of legal cause is “necessary to distinguish
those injuries which . . . coincidentally occur at work because a
preexisting condition results in symptoms which appear during
work hours without any enhancement from the workplace.”101
¶47 Our decision in Allen also recognized that the required
workplace enhancement is “usually supplied by an exertion
greater than that undertaken in normal, everyday life.”102 Allen’s
focus on “exertions” is understandable given that the facts of that
case involved clear exertions—moving and lifting.103 But our
decision in Allen ultimately considered the totality of the
circumstances, including the employee’s exertions and the
workplace conditions. For example, in Allen, the activity that
precipitated the employee’s injury was “moving and lifting
several piles of dairy products.”104 But we made clear that

98 Id. at 25.
99 Id. at 26.
100 Id. at 25.
101 Id.
102 Id.
103 Id. at 28.
104 Id.

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Opinion of the Court
consideration of this activity must account for “how many crates
[of product] were moved . . . , the distance the crates were moved,
the precise weight of the crates, and the size of the area in which
the lifting and moving took place.”105 The court of appeals applied
this approach in American Roofing Co. v. Industrial Commission.106
There the precipitating employment activity involved
“unload[ing] a thirty pound bucket of debris out of [a] truck.”107
But the court of appeals’ consideration of the activity included
“the weight, together with the manner in which [the employee]
lifted the bucket and the fact that the bucket snagged.”108
Accordingly, in determining whether the employment activity
that precipitated Mr. Murray’s injury was “unusual” under Allen,
we must consider the totality of the circumstances.
¶48 “Unusualness” is an objective standard. We compare the
activity that precipitated the employee’s injury with “the usual
wear and tear and exertions of nonemployment life.”109 The focus
is on “what typical nonemployment activities are generally
expected of people in today’s society, not what this particular
claimant is accustomed to doing.”110 This question involves two
steps: first, we must characterize the employment-related activity
that precipitated the employees’ injury, taking into account the
totality of the circumstances; and second, we must determine
whether this activity is objectively unusual or extraordinary.111
¶49 While the first step is a matter of fact,112 the parties in this
case do not dispute the circumstances surrounding Mr. Murray’s
accident. Mr. Murray bent over the edge of the boat, the height of
which was slightly above his knees, at a thirty-five to forty degree

105 Id.
106 752 P.2d 912 (Utah Ct. App. 1988).
107 Id. at 913.
108 Id. at 915.
109 Allen, 729 P.2d at 26.
110 Id.
111Price River Coal Co. v. Indus. Comm’n, 731 P.2d 1079, 1082
(Utah 1986).
112 Id.

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Opinion of the Court
angle. He was holding the cable and the lock in his left hand and
entering the combination with his right. At the time, Mr. Murray
was wearing a fifteen-pound service belt and a one-pound
inflatable life jacket. As he was in this position, a five- to six-inch
wave from another boat’s wake unexpectedly rocked the patrol
boat, causing him to lose his balance.
¶50 Mr. Murray steadied himself by shifting his right foot
against the side of the boat, grabbing the side of the boat with his
right hand, and twisting his body. He immediately felt a slight
pain in his lower back, but he nevertheless went on patrol.
Accordingly, as the court of appeals recognized, the activity that
precipitated Mr. Murray’s injury was the act of steadying
himself.113 And we must account for the fact that he was bent over
the edge of the boat at a thirty-five to forty degree angle, that he
was wearing a fifteen-pound service belt and a one-pound
inflatable life jacket, and that the five- to six-inch wave that hit his
boat was unexpected.
¶51 Having characterized the totality of Mr. Murray’s
precipitating activity, we continue to the next step and determine
whether Mr. Murray’s exertion and surrounding circumstances
were objectively “unusual or extraordinary.”114 Utah courts have
deemed employment activities to be “unusual” or “extraordinary”
when they require an employee to endure jumping, lifting great
weight, or repetition. For example, in Miera v. Industrial
Commission, we concluded that an employee’s “jumps into an
eight-foot hole from a four-foot platform at thirty-minute
intervals” was unusual.115 And in Crosland v. Industrial
Commission, the court of appeals recognized that moving a two-
hundred-pound sign qualified as an unusual activity.116 Likewise,
in Stouffer Foods Corp. v. Industrial Commission, the court of appeals
concluded that continually gripping high pressure hoses was
unusual.117 But in Schreiber v. Labor Commission, the court of
appeals determined that there was nothing unusual about the

113 Murray, 2012 UT App 33, ¶¶ 35–36.
114 Price River Coal Co., 731 P.2d at 1082.
115 728 P.2d 1023, 1024–25 (Utah 1986).
116 828 P.2d 528, 530 n.3 (Utah Ct. App. 1992).
117 801 P.2d 179, 182–84 (Utah Ct. App. 1990).

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force of a rubber ball that injured a playground supervisor when
it hit her in the back.118 The court noted that “the direct force of
the ball was relatively minor, comparable to the jostling one
frequently encounters in crowds.”119
¶52 While the facts of these cases are not directly on point
with Mr. Murray’s, they exhibit the objective standard we must
apply in this case, which is to determine “what typical
nonemployment activities are generally expected of people in
today’s society.”120 People are generally not expected to lift two-
hundred pounds, jump into eight-foot holes, or continually grip a
high pressure hose. But they are expected to withstand minor
force.
¶53 In light of the above analysis, the court of appeals
correctly upheld the Commission’s order in this case. The totality
of Mr. Murray’s precipitating activity—both exertional and
nonexertional—was not unusual. As the court of appeals
recognized, the totality of Mr. Murray’s accident is comparable to
nonemployment activities generally expected in today’s society.121
To borrow the court of appeals’ example, people are generally
expected to travel in everyday life. They are expected to carry
luggage or bags often heavier and less secure than Mr. Murray’s
service belt and life jacket. And they are generally expected to
encounter bumpy rides in planes or buses and maintain and
regain their balance in the process. The unexpected force Mr.
Murray experienced, his awkward position, and the service belt
and jacket he was wearing when the small wave rocked his boat
were not unusual given the unexpected rigors we expect people to
endure while traveling with clumsy luggage. We agree with the
court of appeals that the “whole” of Mr. Murray’s accident
“entailed nothing unusual or extraordinary that could be
presumed to have contributed something substantial to increase
the risk of injury.”122Accordingly, even applying a nondeferential

118 1999 UT App 376, 1999 WL 33244768, at *1.
119 Id. (internal quotation marks omitted).
120 Allen, 729 P.2d at 26.
121 Murray, 2012 UT App 33, ¶ 36.
122 Id. ¶ 38.

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standard of review, we affirm the court of appeals’ decision to
uphold the Commission’s order denying benefits in this case.
CONCLUSION
¶54 The court of appeals erred in applying an “abuse of
discretion” standard of review to the Commission’s decision
denying Mr. Murray compensation benefits. The Commission’s
decision constituted a mixed finding of law and fact that did not
involve discretion. Under the plain language of UAPA, we apply
our traditional approach to reviewing the Commission’s mixed
finding. But even under a nondeferential standard of review,
Mr. Murray failed to establish that his boat accident, rather than
his preexisting back condition, was the legal cause of his injury.
We therefore uphold the court of appeals’ ultimate decision to
deny him compensation benefits.

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