O Connor v. Labor Commission ( 2020 )


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    2020 UT App 49
    THE UTAH COURT OF APPEALS
    PATRICK J. O’CONNOR,
    Petitioner,
    v.
    LABOR COMMISSION AND
    EMPLOYERS’ REINSURANCE FUND,
    Respondents.
    Opinion
    No. 20190145-CA
    Filed March 26, 2020
    Original Proceeding in this Court
    Phillip B. Shell, Attorney for Petitioner
    Edwin C. Barnes and Robert D. Andreasen,
    Attorneys for Respondents
    JUDGE DIANA HAGEN authored this Opinion, in which
    JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
    HAGEN, Judge:
    ¶1     Following a workplace-related injury in May 1983, Patrick
    J. O’Connor applied for disability benefits. O’Connor was
    preliminarily found to be permanently and totally disabled, and
    the Labor Commission (the Commission) ordered the
    Employers’ Reinsurance Fund (ERF) to pay him $241 each week
    for the remainder of his life. In 1988, the legislature amended the
    law to provide that the minimum payment rate for permanent
    and total disability benefits would be equal to 36% of Utah’s
    average weekly wage. Because the average weekly wage grew
    over time, there came a point—in 2008—when O’Connor’s static
    weekly payment of $241 fell below the new percentage-based
    statutory minimum amount. Thereafter, O’Connor petitioned the
    Commission to increase his disability award from a static $241
    per week to a variable 36% of Utah’s current average weekly
    O'Connor v. Labor Commission
    wage. The Commission denied the petition, and O’Connor now
    seeks judicial review of that decision. We conclude that the law
    in effect at the time of O’Connor’s injury—and not the 1988
    amendment—governs the amount of compensation to which
    O’Connor is entitled. Accordingly, we decline to disturb the
    Commission’s decision.
    BACKGROUND 1
    ¶2    O’Connor suffered a workplace-related injury on May 3,
    1983. In March 1987, the Commission ordered ERF to pay
    O’Connor permanent total disability benefits in the amount of
    $241 per week. ERF has made weekly payments of $241 to
    O’Connor ever since. Those facts are not in dispute.
    ¶3     Also relevant to our review, however, is the statutory
    history concerning the minimum amount of weekly benefits to
    which permanently and totally disabled workers are entitled.
    Under the statutory framework at the time of O’Connor’s injury,
    injured workers were entitled to receive 66⅔% of their wage
    from their employers or their employers’ insurers for 312 weeks.
    
    Utah Code Ann. § 35-1-67
     (Allen Smith Co. Supp. 1981). After
    the initial 312-week period following the injury, responsibility
    for the payments would shift to ERF, triggering a separate
    minimum and maximum benefit provision. 
    Id.
     Between 1971 and
    1985, the legislature periodically amended this provision to
    increase the minimum weekly benefit to which permanently and
    totally disabled workers were entitled. See, e.g., 
    id.
     § 35-1-67
    (Supp. 1983) (increasing the minimum weekly benefit from $100
    to $110). Each time the legislature amended the statute, it
    1. In reviewing an order from the Commission, we view the facts
    in the light most favorable to the Commission’s findings and
    recite them accordingly. See Utah Paiute Tribal Housing Auth. Inc.
    v. Department of Workforce Services, 
    2019 UT App 191
    , n.1, 
    454 P.3d 865
    .
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    O'Connor v. Labor Commission
    included a retroactivity clause specifying that the newly
    increased minimum applied to “[a]ll persons who are
    permanently and totally disabled” and entitled them to benefits,
    regardless of when their injury occurred. See, e.g., 
    id.
    ¶4     The legislature amended the statute again in 1988. But
    instead of merely increasing the minimum weekly benefit for
    permanently and totally disabled workers, it adopted a formula
    from which a new minimum could be calculated each year
    without the need to continually revise the statute. The new
    formula provided that “during the initial 312-week entitlement,
    compensation shall be 66⅔% of the employee’s average weekly
    wage at the time of the injury.” 
    Id.
     § 35-1-67(2) (Michie 1988).
    Then, “[a]fter the initial 312 weeks, the minimum weekly
    compensation rate . . . shall be 36% of the current state average
    weekly wage, rounded to the nearest dollar.” Id. § 35-1-67(2)(c). 2
    Notably, unlike previous iterations of the statute, neither the
    1988 amendment nor subsequent versions of the statute
    contained a retroactivity clause.
    ¶5      Due to a combination of inflation and rising wages, the
    minimum weekly benefit under the new calculation increased
    significantly in the decades following 1988. In July 2008, Utah’s
    average weekly wage had increased such that the minimum
    weekly benefit under the new calculation method was greater
    than the $241 that O’Connor received each week under the
    Commission’s 1987 award.
    ¶6     O’Connor filed an application for hearing with the
    Commission, asserting that he was entitled to increased benefits
    because his current weekly payments from ERF were less than
    36% of Utah’s average weekly wage. Both O’Connor and ERF
    filed cross-motions for summary judgment. O’Connor argued
    2. This remains the formula by which the minimum weekly
    benefit is calculated today. Utah Code Ann. § 34A-2-413(2)
    (LexisNexis 2019).
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    that he was    entitled to increased benefits because the 1988
    amendment      applied retroactively to his claim; ERF took
    the opposite   position. An administrative law judge (the ALJ)
    agreed with    O’Connor and granted his motion for summary
    judgment.
    ¶7     ERF filed a motion for review with the Commission,
    challenging the ALJ’s ruling. The Commission issued an order
    reversing the ALJ’s decision and concluding that “the 1988
    statutory change regarding the minimum weekly benefit for
    permanent and total disability compensation” was not
    retroactive and so did not apply to O’Connor’s claim.
    ¶8     O’Connor now seeks judicial review of the Commission’s
    order.
    ISSUE AND STANDARD OF REVIEW
    ¶9      O’Connor argues that the Commission erred in
    concluding that the current statutory minimum weekly benefit
    for permanent and total disability compensation is not
    retroactive and that the law in effect at the time of his injury
    governed the calculation of benefits. “Whether a statute operates
    retroactively is a question of law, which we review for
    correctness,” affording no deference to the Commission. See State
    ex rel. Kirby v. Jacoby, 
    1999 UT App 52
    , ¶ 7, 
    975 P.2d 939
     (cleaned
    up). 3
    3. O’Connor also raises a constitutional claim, arguing that
    applying “the statute only to those injured after the effective
    date of the 1988 amendment would treat similarly situated
    disabled workers differently” in violation of the equal protection
    guarantees of the Fourteenth Amendment to the United States
    Constitution and article I, section 24 of the Utah Constitution.
    However, apart from identifying the alleged classification of
    (continued…)
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    O'Connor v. Labor Commission
    ANALYSIS
    ¶10 The sole issue on appeal is whether the current or past
    version of the disability benefits statute applies to O’Connor’s
    claim. Generally, unless a statute is expressly declared to be
    retroactive, a statutory bar prevents retroactive application of
    newly enacted laws. See 
    Utah Code Ann. § 68-3-3
     (LexisNexis
    2016) (“A provision of the Utah Code is not retroactive, unless
    the provision is expressly declared to be retroactive.”). Here, the
    parties agree that the statute does not contain an express
    declaration of retroactivity. See 
    id.
     § 34A-2-413 (2019).
    ¶11 However, O’Connor argues that this case falls under an
    exception to the general bar on retroactivity because the
    amendment is a “procedural” change as opposed to a
    “substantive” change. It is true that prior Utah cases made that
    distinction, occasionally characterizing the “rule governing the
    applicability of changes in procedural rules as an exception to
    the bar against the retroactive application of statutes.” State v.
    Clark, 
    2011 UT 23
    , ¶ 13, 
    251 P.3d 829
    . But our supreme court has
    since clarified that that characterization is “imprecise.” 
    Id.
    Rather, older retroactivity cases distinguishing between
    (…continued)
    injured workers, O’Connor fails to flesh out his constitutional
    argument by identifying “what level of scrutiny should apply, or
    why, assuming rational basis review, there is no rational basis
    for treating” the purported classes differently. See Rose v. Office of
    Prof’l Conduct, 
    2017 UT 50
    , ¶ 81, 
    424 P.3d 134
    . And it goes
    “without saying that merely identifying classes is not enough to
    demonstrate an equal protection violation.” 
    Id.
     Because
    O’Connor has not carried his burden of persuasion on judicial
    review, we decline to disturb the Commission’s decision on this
    basis. See Snyder v. Labor Comm’n, 
    2017 UT App 187
    , ¶ 23, 
    405 P.3d 984
     (declining to disturb the Commission’s decision where
    a petitioner’s “inadequate briefing resulted in a failure to meet
    his burden of persuasion”).
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    O'Connor v. Labor Commission
    procedural and substantive amendments should be understood
    to stand for “the simpler proposition that we apply the law as it
    exists at the time of the event regulated by the law in question.”
    
    Id.
    Thus, if a law regulates a breach of contract or a
    tort, we apply the law as it exists when the alleged
    breach or tort occurs—i.e., the law that exists at the
    time of the event giving rise to a cause of action.
    Subsequent changes to contract or tort law are
    irrelevant. Similarly, if the law regulates a motion
    to intervene, we apply the law as it exists at the
    time the motion is filed. A change in the
    procedural rule would not apply retroactively to
    prior motions to intervene. We would not expel a
    party for failure to conform to a newly amended
    intervention rule in her prior motions.
    The difference is in the nature of the underlying
    occurrence at issue. On matters of substance the
    parties’ primary rights and duties are dictated by
    the law in effect at the time of their underlying
    primary conduct (e.g., the conduct giving rise to a
    criminal charge or civil claim). When it comes to
    the parties’ procedural rights and responsibilities,
    however, the relevant underlying conduct is
    different: the relevant occurrence for such purposes
    is the underlying procedural act (e.g., filing a
    motion or seeking an appeal). The law governing
    this procedural occurrence is thus the law in effect
    at the time of the procedural act, not the law in
    place at the time of the occurrence giving rise to the
    parties’ substantive claims.
    
    Id.
     ¶¶ 13–14. Accordingly, the more precise question at issue is
    not whether the 1988 amendment was “substantive” or
    “procedural” but, rather, what “event” is being regulated by the
    law in question and, further, when that event occurred.
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    O'Connor v. Labor Commission
    ¶12 O’Connor contends that the event being regulated is the
    moment that his disability payments fell below the statutory
    minimum, an event that occurred for the first time in 2008.
    According to O’Connor, this must be the case because ERF’s
    liability for the minimum payment could not have arisen until
    36% of the average state wage exceeded his weekly award, and
    the “event” being regulated is that which “giv[es] rise to a cause
    of action.” Id. ¶ 13. In contrast, ERF contends that the event
    being regulated is O’Connor’s injury, which occurred in 1983; it
    asserts that this must be the case because O’Connor’s entitlement
    to benefits, including the statutory minimum benefit, arose at the
    time of the injury.
    ¶13 ERF’s position is more consistent with Utah Supreme
    Court caselaw on workers’ compensation. Our supreme court
    has long held that the law governing the amount of
    compensation to which an injured worker is entitled is the law in
    effect at the time of injury. See, e.g., Petersen v. Utah Labor
    Comm’n, 
    2017 UT 87
    , ¶ 1 n.1, 
    416 P.3d 583
     (“This court applies
    the law as it existed at the time of the injury.”); Utah State Road
    Comm’n v. Industrial Comm’n, 
    168 P.2d 319
    , 320 (Utah 1946)
    (“[T]he law governing this case is that which was in effect when
    the injury occurred.”). For example, in Brown & Root Industrial
    Service v. Industrial Commission of Utah, 
    947 P.2d 671
     (Utah 1997),
    the court analyzed whether an amendment affecting workers’
    compensation applied retroactively to bar an injured worker’s
    claim. The court held that the amendment did not apply
    retroactively and that the law existing at the time of injury
    governed because the amendment did not regulate a “mode or
    form of procedure.” Id. at 676 (cleaned up). Rather, the
    amendment regulated the “substantive rights” of the injured
    worker at the time that he was injured and so did not apply
    retroactively. Id.
    ¶14 As O’Connor points out, our supreme court has applied
    some amendments affecting workers’ compensation benefits
    retroactively. In Marshall v. Industrial Commission, 
    704 P.2d 581
    (Utah 1985), the court held that a statute providing for interest
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    O'Connor v. Labor Commission
    payments on past-due workers’ compensation benefits applied
    to an action seeking benefits for an injury sustained before
    passage of the statute. Id. at 583. However, as the Marshall court
    explained, “[i]nterest on a compensation award is incident to a
    right and a remedy that already exists.” Id. Injured workers do
    not have a claim for interest until disability benefits to which
    they are entitled become overdue. In contrast, injured workers
    become entitled to receive a minimum benefit on the date that
    they are injured. Cf. Utah State Road Comm’n, 168 P.2d at 320
    (declining to apply a statutory maximum that limited an injured
    worker’s total benefits because it was not “in effect when the
    injury occurred”). Despite holding that the interest payment
    statute applied retroactively, the Marshall court was clear that
    “the benefits to be awarded to an injured worker are to be
    determined on the basis of the law as it existed at the time of the
    injury.” 704 P.2d at 582.
    ¶15 In this case, similar to Brown & Root, the statute at
    issue directly regulates the benefits to which an injured
    worker is entitled at the time of injury. See 947 P.2d at 676.
    Specifically, because O’Connor was injured in 1983, he was
    initially entitled to receive at least 66⅔% of his average weekly
    wages, so long as it did not exceed 85% of the state average
    weekly wage at the time of injury. See 
    Utah Code Ann. § 35-1-67
    (Allen Smith Co. Supp. 1981). After the initial 312 weeks
    following his injury, when responsibility for the payments
    shifted to ERF, O’Connor was guaranteed to receive no less
    than $100 per week. See 
    id.
     His entitlement to the $100-per-week
    statutory minimum arose at the time of his injury, even
    though the minimum would not apply, if at all, until 312 weeks
    passed. 4
    4. Although an amendment increasing the statutory minimum
    benefit to $110 passed in 1983, it did not go into effect until six
    days after O’Connor’s injury. See 
    Utah Code Ann. § 35-1-67
    (Allen Smith Co. Supp. 1983).
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    O'Connor v. Labor Commission
    ¶16 If, as O’Connor contends, subsequent amendments to the
    statutory minimum applied to workers injured before the
    amendment’s effective date, an amendment reducing—or even
    eliminating—the statutory minimum would reduce the benefit
    to which workers were otherwise entitled based on the law in
    effect at the time of their injuries. Such a result would be in
    tension with Brown & Root because it would reach back and alter
    the substantive right to benefits guaranteed to injured workers at
    the time of their injuries. See 947 P.2d at 676. When O’Connor
    was injured in 1983, he was entitled to the minimum benefits
    guaranteed under existing law. Absent express direction from
    the legislature to apply subsequent amendments to the class of
    workers injured before the effective date, the statute in effect at
    the time of the injury continues to control the calculation of
    benefits.
    ¶17 Accordingly, O’Connor is not entitled to have his $241
    weekly award increased to match the current statutory
    minimum benefit. The law as it existed at the time of O’Connor’s
    injury in 1983 governs the amount of benefits to which he is
    entitled.
    CONCLUSION
    ¶18 The statute regulates benefits to which injured workers
    are entitled at the time that they are injured, so the law as it
    existed at the time of O’Connor’s injury governs the amount of
    minimum benefits to which he is entitled. Accordingly, we
    decline to disturb the Commission’s decision that O’Connor was
    not entitled to an increase in his weekly benefits.
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Document Info

Docket Number: 20190145-CA

Filed Date: 3/26/2020

Precedential Status: Precedential

Modified Date: 12/21/2021