Vigos v. Mountainland Builders, Inc.

*216RUSSON, Justice,

concurring in the result:

¶ 35 I agree -with Justice Stewart that Vigos’ claim for permanent total disability benefits is not barred by the statute of limitations contained in former Utah Code Ann. § 35-1-99(3). However, I do not agree that Vigos’ initial claims for disability benefits can be interpreted as satisfying the express statutory mandate that disability claimants must file an application for a hearing. Instead, I believe Mountainland and the Workers’ Compensation Fund are estopped from invoking the statute because they have already granted disability benefits to Vigos without demanding compliance with the application requirement. Moreover, the Industrial Commission cannot arbitrarily and discrimi-natorily accord continuing jurisdiction to those persons who by happenstance have been compelled to file an application for a hearing, while at the same time denying continuing jurisdiction to similarly situated persons who have not had occasion to file such an application.

¶36 To begin, I believe both Justice Stewart’s lead opinion and Chief Justice Howe’s dissent miss the most important point in former section 35-1-99(3) of the Utah Code (now codified at section 34A-2-4171), which stated:

A claim for compensation for temporary total disability benefits, temporary partial disability benefits, permanent partial disability benefits, or permanent total disability benefits is wholly barred, unless an application for hearing is filed with the Industrial Commission within six years after the date of the accident.

This provision does not merely prescribe a statute of limitations. Under its plain language, the filing of an application for hearing is a statutory prerequisite to the receipt of any disability benefits whatsoever. Though it prohibits new and original claims beyond six years, it does not relieve claimants of the burden of filing an application if they wish to receive disability benefits within the first six years after an accident. Consequently, the ultimate effect of the plain language of this provision is to create a condition precedent to the receipt of disability benefits at any time prior to six years from the accident (but which may not be exercised for the first time beyond six years).

¶ 37 It is clear from the record, however, that the Fund has not required compliance with this requirement. Indeed, all the parties have acknowledged that the “application for hearing” requirement within the first six years after an accident is functionally meaningless unless a claim is challenged. As a consequence, it appears no claimant is ever required to file an application for a hearing within that period unless the claims are contested.2 In this case, the Fund granted temporary total disability benefits from October 14,1988, through July of 1989. At that time, the Fund did not request, instruct, or in any way require Vigos to file any document that it or the Commission acknowledges as an “application for hearing,” yet the Fund now argues that Vigos cannot modify his disability status without timely filing such a document.

¶ 38 If, prior to paying out disability benefits, the Fund had required Vigos to file the application in conformance with the statute, then — as the Commission concedes — Vigos would have been able to pursue his request for a modification of his benefits under the continuing jurisdiction of the Commission. The Fund’s failure to demand compliance with the statute was thus clearly prejudicial to Vigos’ subsequent rights. I submit that where the Fund paid out disability benefits in 1988 (well within the six-year period) and in so doing failed to require Vigos’ compliance with the “application for hearing” requirement, it is equitably estopped from belatedly attempting to enforce that which it *217previously ignored.3 See State Dep’t of Human Servs. v. Irizarry, 945 P.2d 676, 680 (Utah 1997) (setting forth elements of estoppel); 28 Am.Jur.2d Estoppel and Waiver § 27 (1966).

¶ 39 Nor can the Commission deny its continuing jurisdiction to Vigos. The Commission concedes it will accept more than one form for the purpose of preserving continuing jurisdiction, and it specifically designates the “Application for Hearing — Form 001” and the “Claim for Protection of Rights— Form 002” as examples. Hence, the Commission impliedly contends that the legislature delegated to it the authority and discretion to dictate what satisfies the “application for hearing” requirement, even if the forms designated for that purpose do not actually constitute a genuine request that a hearing be held.4 Notwithstanding this contention, the Commission’s current policy effectively discriminates between claimants whose claims have been contested and those whose claims have not been contested. Claimants who have been denied disability benefits must file an application for hearing if they wish to pursue their claims, but those (such as Vigos) whose claims have been accepted and paid without contest have had no legitimate opportunity to preserve their rights.

¶ 40 The Commission’s practice defies the policy purposes of the workers’ compensation scheme. Because the scheme is an insurance system designed to avoid the costs and difficulties inherent in the common law tort system it supplanted, injured employees need not undertake the burdensome and expensive task of proving the cause of their injuries. See, e.g., Stoker v. Workers’ Compensation Fund, 889 P.2d 409, 411 (Utah 1994). Hence, they are encouraged not to invest in expensive legal counsel, and they have every incentive to rely on the advice and instructions provided by their employer, their employer’s insurer, and the Commission. If the scheme functions as it should, all these parties work together to provide the benefits to which an injured employee is legitimately entitled, and none of the parties seek to manipulate the system or avoid obligations.

¶41 In this case, the system initially functioned as intended. After Vigos was injured, he properly observed all statutory and administrative rules of which he was notified and attempted to rehabilitate himself. If the Fund had unjustifiably challenged his claims, then Vigos would have been compelled to file an application for a hearing; but where the Fund cooperated and agreed that Vigos was entitled to receive disability benefits, he had no reason, indeed, no justification, for filing such an application.

¶42 The Commission’s practice thus negates the entire purpose of the workers’ compensation scheme and effectively requires all injured workers to obtain legal counsel to preserve their rights. If the requirement at issue served a reasonable purpose, then the *218Commission should be obligated to notify all claimants from the outset and enforce the requirement uniformly; but where the procedural requirement of filing an application for hearing serves no rational purpose, the Commission’s position on this issue is indefensible. Indeed, its practice of granting continuing jurisdiction to the “fortunate” few who have suffered a previous denial of disability benefits while denying it to all those who have dutifully complied with the purposes of the workers’ compensation scheme (but who have merely failed to research and discover the purpose and existence of the “Claim for Protection of Rights”) is arbitrary and capricious. See Milne Truck Lines v. Public Serv. Comm’n, 720 P.2d 1373, 1378 (Utah 1986).

¶43 In conclusion, I believe Mountain-land and the Fund are estopped from demanding compliance with the statutory requirement that Vigos file an application for hearing; and I believe neither the Commission nor the legislature may enforce that requirement in an irrationally discriminatory or arbitrary manner. I thus concur with the result reached by Justice Stewart’s lead opinion.

. The statute has been significantly reorganized and rewritten, but still relies upon the irrational prerequisite of filing "an application for hearing.” See Utah Code Ann. § 34A-2-417(2)(a)(i) (Supp.1999).

. Indeed, as Justice Stewart’s opinion points out, the Commission’s Employee’s Guide to Workers’ Compensation does not instruct injured employees to file an application for a hearing as part of any claim for disability benefits. See supra note 6, op. of Stewart, J.

. Justice Zimmerman argues that the Fund is not subject to estoppel because it is "a government agency acting in a governmental capacity.” This statement is simply incorrect. Regardless of the Fund's status as a legislatively established "quasi-public” entity, it manifestly is not acting in a governmental capacity. Utah Code Ann. § 35 — 1— 46(1) (now codified at section 34A-2-201(l) (1997)) permitted employers to select any one of three insurance options: (1) they may insure themselves with the Fund; (2) they may obtain insurance from a private insurer authorized by the state; or (3) they may self-insure if they can demonstrate the financial ability to do so. Thus, the Fund functions in the same manner and capacity as a private insurer and cannot claim any special governmental status to avoid equitable estoppel.

. Arguably, the legislature did not intend to delegate authority to the Commission to determine what constitutes an "application for hearing.” If so, the Commission may not accept, for purposes of the statute, any form that does not actually constitute a genuine request for an adjudicative hearing. Such an interpretation of the statute, however, would be constitutionally invalid. Claimants whose claims have not been contested would not be allowed .by the statute to meet its express requirements because they could not be required to submit (and the Commission could not accept) an application for a pointless adjudicative hearing. The statute would thus create two classes of claimants: those who had been compelled to file an application for hearing and those who had been prevented from filing an application. The former class would benefit from continuing jurisdiction beyond six years, and the latter would not. Since there is no rational basis for drawing such a distinction, this interpretation of the statute would violate Vigos’ rights to due process and equal protection. See State v. Herrera, 895 P.2d 359, 368 (Utah 1995).