Wasatch Electric v. Labor Commission

2020 UT App 20

THE UTAH COURT OF APPEALS

WASATCH ELECTRIC DYNALECTRIC COMPANY AND

AMERICAN CASUALTY COMPANY OF READING, PA,

Petitioners,

v.

LABOR COMMISSION AND WENDELL BENWARD,

Respondents.

Opinion

No. 20190398-CA

Filed February 13, 2020

Original Proceeding in this Court

Brad J. Miller and Trent D. Holgate, Attorneys

for Petitioners

Gary E. Atkin and K. Dawn Atkin, Attorneys for

Respondent Wendell Benward

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 Wendell Benward was electrocuted while maintaining

electrical power lines. He survived, but his injuries were so

severe that doctors found it necessary to amputate both of his

feet. Because of his injuries, Benward qualified for and received

workers’ compensation benefits. Despite his injuries, however,

Benward eventually was able to go back to work, albeit in a

different capacity. His former employer, Wasatch Electric

Dynalectric Company (Wasatch), does not think it should have

to pay Benward permanent total disability benefits for time

periods in which Benward was able to work. Under applicable

Utah law, Wasatch’s argument would be a winner with regard to

most injured workers, who ordinarily lose eligibility for

permanent total disability benefits if they are able to return to

Wasatch Electric v. Labor Commission

work. But Utah law carves out an exception for workers who

have lost limbs or eyes in a workplace accident, and considers

such workers permanently disabled and entitled to permanent

total disability benefits even if they are later able to return to

work. We therefore reject Wasatch’s arguments, and decline to

disturb the decision of the Labor Commission (the Commission),

which ordered Wasatch to continue to pay benefits to Benward

and refused to allow Wasatch to offset the wages it paid

Benward post-accident.

BACKGROUND 1

¶2 On July 23, 2012, Benward was working as part of a team

tasked with maintaining a set of electrical power lines.

According to Benward, the team was transporting a large pole

when Benward observed that the grounded pole was too close to

a live power line. Benward rushed over to help, but tripped and

twisted his ankle just before reaching them. As he regained his

footing, electricity suddenly arced between the pole and the

nearby power line. Somehow, the electricity jumped to

Benward’s left arm, and the current passed through his body

and exited through both of his feet, causing significant injury.

¶3 Benward was evacuated from the scene by helicopter and

taken to a hospital, where doctors determined that his injuries

required the amputation of both feet. The amputation was

performed that same day. In addition to the loss of his feet,

Benward also suffered second- and third-degree burns over

much of his upper body, as well as hearing loss, sleep apnea,

1. “We state the facts and all legitimate inferences drawn

therefrom in the light most favorable to the agency’s findings.”

ABCO Enters. v. Utah State Tax Comm'n, 2009 UT 36, ¶ 2 n.1, 211

P.3d 382 (quotation simplified).

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Wasatch Electric v. Labor Commission

tinnitus, meniscus tears in both knees, and memory loss, among

other ailments.

¶4 After nearly a year, Benward recovered sufficiently to

return to work on a part-time basis, although not in the same

capacity. With some retraining, Benward was able to work as a

safety manager, and he performed those duties for Wasatch on a

part-time basis for a few months. Then, in January 2014,

Benward was able to increase his hours to full time, and

continued to work as a full-time safety manager until Wasatch

laid him off, for unrelated reasons, in January 2017. After being

laid off, Benward was eventually able to find similar

employment as a safety professional at an electrical engineering

company specializing in high-voltage power installation.

Although the work is inconsistent and the wages and benefits

are project-dependent, Benward now earns a weekly wage that

is even higher than the wage he earned at Wasatch.

¶5 In addition to the part-time and full-time salary Benward

has earned since the date of the accident, Wasatch (or its

insurance company) also paid Benward workers’ compensation

benefits. Beginning on the day following the accident, Wasatch

paid Benward temporary total disability benefits until Benward

was able to resume part-time work. While Benward was

working part-time, Wasatch paid Benward—in addition to his

part-time wages—temporary partial disability benefits. After

Benward resumed full-time employment, Wasatch paid

Benward permanent partial disability benefits, based on a forty-

nine percent whole person impairment rating, until it laid

Benward off in 2017. In total, Wasatch paid Benward $130,818.68

in various types of workers’ compensation benefits between the

date of his accident and the date he was laid off.

¶6 In March 2017, after being laid off, Benward filed a claim

for permanent total disability benefits stemming from the loss of

both of his feet. In this claim, Benward asserted that he was

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Wasatch Electric v. Labor Commission

entitled to continuing permanent total disability benefits from

the date of his accident, and continuing for the rest of his

life, regardless of the fact that he was able to return to work

after the accident as a safety manager. In response, Wasatch

acknowledged that Benward met the criteria for permanent total

disability under Utah’s workers’ compensation statute, given the

amputation of both of his feet, and that he should receive

benefits for the time periods in which he was fully or partially

unable to work. However, Wasatch asserted that Benward was

not entitled to permanent total disability benefits once it was

demonstrated that he was again capable of gainful employment.

¶7 An administrative law judge (ALJ) ruled in favor of

Wasatch, determining that Benward’s injury created only a

“presumptive finding” that he was permanently and totally

disabled, and that this presumption was rebutted by the fact that

Benward had returned to work. The ALJ concluded that Wasatch

was not obligated to pay Benward permanent total disability

benefits during periods in which he was gainfully employed.

¶8 Benward appealed the decision to the Commission, which

reversed the ALJ’s legal determination, concluding that Benward

was entitled to permanent total disability benefits even after

returning to work, and stating as follows:

The Commission recognizes that awarding

permanent total disability compensation to Mr.

Benward for a period during which he was

working may seem counterintuitive; however,

neither gainful employment nor the ability to work

are part of the criteria under § 413(9) as they are

under § 413(1). The unique criteria found in

§ 413(9) provide for a final award of permanent

total disability compensation without regard for or

consideration of the claimant’s interim work

following the loss described in that subsection.

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Wasatch Electric v. Labor Commission

However, the Commission noted that Benward would not be

entitled to permanent total disability benefits during the time he

worked for Wasatch, if his wages had not really been earned but

had merely been “intended to be paid in lieu of disability

compensation.” The Commission remanded the case back to the

ALJ for a factual determination about whether the money paid to

Benward while he was employed by Wasatch post-accident was

“intended as a substitute for disability compensation or as

regular compensation for the work performed.”

¶9 On remand, the ALJ found that Benward “was paid

during the relevant time period for actual work for which [he]

earned the wages he was paid,” that his job “was not a make-

work job” and “was legitimate and not just to avoid permanent

total disability benefits,” and that Benward “gave a dollar’s

worth of labor for every dollar he was paid.” The Commission

affirmed the ALJ’s factual findings, and concluded that Wasatch

acquired an ongoing obligation to pay Benward permanent total

disability benefits starting on the date of his accident and

continuing for the remainder of Benward’s life, and that—

although Wasatch was entitled to an offset for the $130,818.68

that it had already paid Benward for other types of workers’

compensation benefits—Wasatch was not entitled to an offset for

what it had paid him in wages after the accident.

ISSUE AND STANDARD OF REVIEW

¶10 Wasatch now seeks judicial review of certain aspects of

the Commission’s order. Wasatch does not seek judicial review

of any factual findings made by the ALJ or the Commission, and

does not dispute the fact that it has a workers’ compensation

obligation to Benward for at least the time periods in which

Benward was unable to work due to his injuries. However, it

asserts that it has no obligation to pay permanent total disability

benefits to Benward during periods of time in which Benward

was or is gainfully employed, and that it should be entitled to

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offset the wages it paid to Benward post-accident against its

workers’ compensation obligation to Benward. Thus, the issues

Wasatch raises in this case are legal in nature, and involve the

meaning and interpretation of Utah’s workers’ compensation

statutes. In this context, we review the Commission’s legal

determinations for correctness. See Esquivel v. Labor Comm’n, 2000

UT 66, ¶ 13, 7 P.3d 777 (stating that “[m]atters of statutory

construction are questions of law that are reviewed for

correctness” (quotation simplified)); see also Intermountain Slurry

Seal v. Labor Comm’n, 2002 UT App 164, ¶ 4, 48 P.3d 252 (stating

that, when reviewing the Commission’s resolution of a question

of law, we give “no deference” to the “agency’s determination,

because the appellate court has the power and duty to say what

the law is and to ensure that it is uniform throughout the

jurisdiction” (quotation simplified)).

ANALYSIS

¶11 For most injured workers—those who have not lost limbs

or eyes—permanent total disability benefits under Utah’s

workers’ compensation statutes are available only if the worker

proves, by a preponderance of the evidence, the existence of six

elements: (1) that he “sustained a significant impairment” as a

result of a work-related injury; (2) that he “is not gainfully

employed”; (3) that he has an impairment that limits his “ability

to do basic work activities” and (4) prevents him from

“performing the essential functions of the work” for which he

was qualified prior to his accident; (5) that he “cannot perform

other work reasonably available”; and (6) that “the industrial

accident or occupational disease is the direct cause of the

employee’s permanent total disability.” See Oliver v. Labor

Comm’n, 2017 UT 39, ¶ 15, 424 P.3d 22 (quoting Utah Code Ann.

§ 34A-2-413(1)). In this case, given that he is now able to work

full-time, and has been since at least 2014, Benward cannot meet

this test, and does not argue that he can.

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Wasatch Electric v. Labor Commission

¶12 Instead, Benward points to subsection (9) of that same

statutory provision, and asserts that there exists a second and

alternative path to proving permanent total disability, one that

exists only for workers who sustained a catastrophic injury

involving the loss of limbs or eyes, and one that does not

consider whether the worker can return to work. That provision

reads, in its entirety, as follows:

(a) The loss or permanent and complete loss of the

use of the following constitutes total and

permanent disability that is compensated

according to this section:

(i) both hands;

(ii) both arms;

(iii) both feet;

(iv) both legs;

(v) both eyes; or

(vi) any combination of two body members

described in this Subsection 9(a).

(b) A finding of permanent total disability

pursuant to Subsection 9(a) is final.

Utah Code Ann. § 34A-2-413(9) (LexisNexis 2019). 2

¶13 We have interpreted this statutory subsection once before,

in Intermountain Slurry Seal v. Labor Commission, 2002 UT App

164, 48 P.3d 252. In that case, we noted that Utah’s workers’

compensation statute sets forth “two avenues” that are

“available for an employee to demonstrate the existence of a

permanent, totally disabling condition.” Id. ¶ 7. Under the first

avenue, set forth in section 34A-2-413(1) of the Utah Code, the

2. Because the relevant sections of the statute have not changed

since the date of the administrative proceeding in question, we

cite the current version of the Utah Code for convenience.

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Wasatch Electric v. Labor Commission

injured worker must meet the six-part test discussed above. Id.

The second avenue, set forth in subsection (9) of that same

statute, is available only to workers who have lost two limbs or

eyes, and under that avenue the worker does not have to make

the six-part showing detailed in subsection (1). Instead, “if an

employee suffers one of the combination of injuries articulated in

subsection [(9)],[ 3] there is a conclusive presumption that the

employee is permanently and totally disabled.” Id. ¶ 9. Indeed,

we stated that “[o]ur reading of the plain language of subsection

[(9)] evidences a clear intent to separate the injuries enumerated

under subsection [(9)] from other injuries that may also result in

an award of permanent total disability benefits.” See id. ¶ 11; see

also id. ¶ 14 (stating that “the legislature carefully [chose] to

immunize subsection [(9)] claims from the rigorous requirements

applied to all other [workers’ compensation] claims”). We noted

that workers attempting to use the subsection (9) avenue in

proving that they suffered a permanent total disability “need

show nothing more than the existence of an injury listed within

subsection [(9)] and that the injury was the result of an industrial

accident,” and that such an employee “is not required to

establish that he is totally disabled as all other claimants are

required to do pursuant to” subsection (1). Id. ¶ 11.

¶14 Moreover, we emphasized that a subsection (9) claimant’s

entitlement to permanent total disability benefits is final, and not

3. In Intermountain Slurry Seal v. Labor Commission, 2002 UT App

164, 48 P.3d 252, we refer to “subsection (10)” as the relevant

subsection. Since our opinion in Intermountain Slurry Seal, the

legislature removed one of the earlier-listed statutory

subsections, rendering the former subsection (10) now

subsection (9), and when quoting Intermountain Slurry Seal, we

use the current subsection number. The relevant statutory

language, although now numbered differently, remains

substantively unchanged.

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Wasatch Electric v. Labor Commission

“subject to the same rehabilitation provisions as a disability

finding under subsection (1).” Id. ¶ 10. “Once a subsection [(9)]

claimant has established a qualifying injury, there is a conclusive

presumption that the claimant/employee is permanently totally

disabled and no further findings are required.” Id. ¶ 12. We

concluded by stating that “the plain language of the statute

clearly establishes that total permanent disability benefits

awarded pursuant to subsection [(9)] are not subject to, nor

controlled by, the claimant/employee’s limitations or

employability.” Id. 4

¶15 Wasatch makes no effort to distinguish Intermountain

Slurry Seal, or to argue that it is inapplicable, and does not ask us

4. More than seventeen years have passed since our decision in

Intermountain Slurry Seal, and in that time span, while the

legislature has made certain changes to section 34A-2-413 of the

Utah Code, it has not substantively changed the language of

subsection (9), nor has it made any other changes that would

indicate a legislative belief that our opinion in Intermountain

Slurry Seal was inconsistent with legislative intent. Because we

presume that the legislature is aware of judicial interpretations

of statutes, we in turn may presume that the legislature’s choice,

over the course of nearly two decades, not to amend the statute

to supersede Intermountain Slurry Seal indicates an acceptance of

our interpretation. See Rutherford v. Talisker Canyons Fin. Co., 2019

UT 27, ¶ 62, 445 P.3d 474 (noting the significance of the fact that,

“in the years since Clover was decided, the legislature has not

amended the [relevant statute] to overrule the holding of

Clover”); United States Smelting, Refining & Mining Co. v. Nielsen,

430 P.2d 162, 167 (Utah 1967) (Ellett, J., dissenting) (noting that a

previous holding was twenty-seven years old, and that “the

Legislature by not changing this statute would have given its

tacit approval to the interpretation placed thereon” by the

previous holding).

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to reexamine the holding we rendered in that case. 5 Instead,

Wasatch makes generalized arguments that Benward’s

interpretation of the statute leads to an “absurd result” that

“exceeds the bounds of reasonableness and rationality” and

would result in a “windfall” to Benward. But we are bound by

Intermountain Slurry Seal, and—absent a disavowal or overruling

of that case, something Wasatch does not seek here—we must

follow the holding and rationale of our prior cases. 6 See State v.

Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (stating that, “[u]nder the

doctrine of horizontal stare decisis, the first decision by a court on

a particular question of law governs later decisions by the same

court,” that “one panel on the court of appeals owes great

deference to the precedent established by a different panel on

the court of appeals,” and clarifying that “[t]he doctrine of

horizontal stare decisis applies as between different panels of the

court of appeals” (quotation simplified)); see also In re adoption of

B.N.A., 2018 UT App 224, ¶ 22, 438 P.3d 10 (stating that “one

panel of this court is bound to follow the previous decisions of

5. Wasatch cited Intermountain Slurry Seal only once in its

opening brief, in the context of making a passing reference to the

ALJ’s and the Labor Commission’s rulings. And, after Benward

relied heavily upon Intermountain Slurry Seal in his brief,

Wasatch chose not to file a reply brief.

6. We note, as an aside, that we find the statutory interpretation

analysis in Intermountain Slurry Seal to be not only binding, but

also persuasive. See 7 Arthur Larson & Lex K. Larson, Larson’s

Workers’ Compensation Law § 83.08 (2014) (stating that “[s]pecial

statutory provisions may supersede the general principles

controlling the relation between medical and wage loss factors in

determining total disability,” and that “[t]he commonest

example of this type of statute is the familiar provision that

certain combinations of losses of members shall be presumed to

constitute total disability”).

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Wasatch Electric v. Labor Commission

another panel of this court, unless we make a specific decision to

overrule or disavow the earlier precedent”).

¶16 In this case, there is no dispute that Benward meets the

requirements of subsection (9) for demonstrating permanent

total disability. The parties to this case have stipulated that

Benward’s workplace accident arose out of the course and scope

of his employment with Wasatch, and that, as a result of that

accident, he sustained the loss of both of his feet. And under

subsection (9), Benward need show nothing more. See Utah Code

Ann. § 34A-2-413(9)(a); see also Intermountain Slurry Seal, 2002 UT

App 164, ¶ 11 (stating that a subsection (9) claimant “need show

nothing more than the existence of an injury listed within

subsection [(9)] and that the injury was the result of an industrial

accident”). He has proven that he was permanently and totally

disabled, and under subsection (9), that status is “final” and does

not change even if Benward is at some point able to return to the

workforce. See Utah Code Ann. § 34A-2-413(9)(b); see also

Intermountain Slurry Seal, 2002 UT App 164, ¶ 12 (stating that

“[o]nce a subsection [(9)] claimant has established a qualifying

injury, there is a conclusive presumption” of permanent total

disability that is not “controlled by” future “employability”).

CONCLUSION

¶17 The plain language of the relevant statutory subsection, as

interpreted by this court in Intermountain Slurry Seal, compels the

conclusion that Benward is entitled to permanent total disability

benefits, even if he is now capable of working. To the extent

Wasatch finds that conclusion absurd or unreasonable, Wasatch

would be better served to direct its complaints to the Utah

Legislature. Because we are obligated to apply both the statute

as written as well as our own prior case law, we decline to

disturb the decision of the Labor Commission.

20190398-CA 11 2020 UT App 20