Prows v. Labor Commission

2014 UT App 196_________________________________________________________
THE UTAH COURT OF APPEALS
DAVID PROWS,
Petitioner,
v.
LABOR COMMISSION ; AUTO -OWNERS INSURANCE COMPANY; AND
ALLEN ’S MASONRY , INC .,
Respondents.
Opinion
No. 20130471-CA
Filed August 14, 2014
Original Proceeding in this Court
Daniel F. Bertch and Kevin K. Robson, Attorneys
for Petitioner
Jaceson R. Maughan, Attorney for Respondent
Labor Commission
Bret A. Gardner and Kristy L. Bertelsen, Attorneys
for Respondents Auto-Owners Insurance
Company and Allen’s Masonry, Inc.
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and JOHN A. PEARCE concurred.
VOROS, Judge:
¶1 David Prows, a brickmason, fell from scaffolding, injuring
his head and shoulder. A few years later he filed for disability
benefits, claiming a permanent total disability. The Utah Labor
Commission denied his claim on the ground that Prows, then
gainfully employed, could not establish a permanent total
disability. Prows argues that the legal category of permanent total
disabilities includes many disabilities that are in fact temporary. In
support of this argument he points to various sections of the
Prows v. Labor Commission
Workers’ Compensation Act that contemplate permanent total
disability payments ending during the life of the recipient. We
decline to disturb the Commission’s ruling.
BACKGROUND
¶2 A brickmason for over twenty-five years, Prows fell from
scaffolding while working for Allen’s Masonry in 2007. He landed
on his right shoulder, tearing his rotator cuff and injuring his head
on a landscaping boulder.
¶3 Prows filed an Application for Hearing with the
Commission on November 28, 2011, seeking benefits for his
claimed permanent total disability. He attached an Attending
Physician’s Statement from Dr. John Speed. Speed confirmed
Prows’s injuries and asserted that Prows’s accident rendered him
“totally disabled” until “at least 2/1/12.”
¶4 On December 19, 2011, a month after Prows claimed a
permanent total disability with the Commission, Prows accepted
a job from the VA Hospital and began sorting mail for $13.00 per
hour plus benefits. Prows did not request, and the hospital did not
provide, any special accommodations. After accepting this job,
Prows did not withdraw his claim for permanent total disability.
Instead, Prows narrowed his claim to the period of December 8,
2008 (the day Allen’s Masonry terminated his employment),
through December 19, 2011 (the day Prows started work at the
hospital).
¶5 An administrative law judge (ALJ) heard Prows’s claim. At
the start of the hearing, Allen’s Masonry moved for summary
judgment. Allen’s Masonry argued that because Prows was
gainfully employed, he did not meet the test for permanent total
disability. The ALJ granted Allen’s Masonry’s motion, reasoning
that Prows could not establish a permanent total disability, because
he demonstrated the “ability to perform work.” Prows asked the
Commission to review the ALJ’s order. On review, the Commission
ruled that Prows’s gainful employment precluded a finding of
20130471-CA 2 2014 UT App 196Prows v. Labor Commission
permanent total disability, even for the period in which he did not
work.
ISSUE ON APPEAL
¶6 Prows contends that the Commission erred in ruling as a
matter of law that he did not qualify for permanent total disability.
“When reviewing an agency’s interpretation of law, we review for
correctness.” Utah Chapter of the Sierra Club v. Air Quality Bd., 2009
UT 76, ¶ 13, 226 P.3d 719 (citation and internal quotation marks
omitted).
ANALYSIS
¶7 Prows contends that he established a permanent total
disability for the period in which his injury prevented him from
working. Prows argues that his benefits for permanent total
disability “accrued on at least a weekly basis, from the time he lost
his employment with [Allen’s Masonry] . . . until his re-
employment with the [hospital].” Allen’s Masonry, Auto-Owners
Insurance Company, and the Commission (collectively,
Respondents) respond that Prows cannot qualify for permanent
total disability, because he returned to gainful employment before
his administrative hearing.
¶8 To establish entitlement to benefits for a permanent total
disability under the Workers’ Compensation Act, an injured
employee must prove by a preponderance of the evidence that she
meets certain criteria.1 Utah Code Ann. § 34A-2-413(1)(c)
1. To establish a permanent total disability, the employee must
meet the following four requirements:
(i) the employee is not gainfully employed;
(ii) the employee has an impairment or combination
of impairments that limit the employee’s ability to do
(continued...)
20130471-CA 3 2014 UT App 196Prows v. Labor Commission
(LexisNexis 2011). First, the employee must prove that she “is not
gainfully employed.” Id. § 34A-2-413(1)(c)(i). The present dispute
centers on this statutory requirement.
¶9 When faced with a question of statutory interpretation, “we
always look first to the statute’s plain language in an effort to give
effect to the legislature’s intent, to the degree it can be so
discerned.” Matthews v. Olympus Constr., LC (In re Olympus Constr.,
LC), 2009 UT 29, ¶ 10, 215 P.3d 129. Furthermore, “[w]hen
interpreting a statute, we assume, absent a contrary indication, that
the legislature used each term advisedly according to its ordinary
and usually accepted meaning.” Hutter v. Dig-It, Inc., 2009 UT 69,
¶ 32, 219 P.3d 918. Finally, “[w]hen the plain meaning of the statute
can be discerned from its language, no other interpretive tools are
needed.” LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135.
¶10 As stated above, to establish a permanent total disability, an
employee must prove by a preponderance of the evidence that she
1. (...continued)
basic work activities;
(iii) the industrial or occupationally caused
impairment or combination of impairments prevent
the employee from performing the essential
functions of the work activities for which the
employee has been qualified until the time of the
industrial accident or occupational disease that is the
basis for the employee’s permanent total disability
claim; and
(iv) the employee cannot perform other work
reasonably available, taking into consideration the
employee’s:
(A) age;
(B) education;
(C) past work experience;
(D) medical capacity; and
(E) residual functional capacity.
Utah Code Ann. § 34A-2-413(1)(c) (LexisNexis 2011).
20130471-CA 4 2014 UT App 196Prows v. Labor Commission
“is not gainfully employed.” Utah Code Ann. § 34A-2-413(1)(c)(i).
Here, while still unemployed, Prows sought benefits for his
claimed permanent total disability. A month later, he accepted
work from the hospital. Consequently, at the time of the
administrative hearing, Prows was “gainfully employed.” Id.
Accordingly, the ALJ ruled that Prows failed to establish a
permanent total disability.
¶11 On its face, Prows’s argument that a currently employed
claimant could be deemed permanently and totally disabled seems
self-refuting. But Prows advances several theories as to why we
should adopt his counterintuitive reading of the statute. To begin
with, he argues that we should read “is not gainfully employed” to
mean was “not gainfully employed during the period of the
claimed disability.” This argument turns on a fine distinction: what
the meaning of the word “is” is. In reading a statute, we assume
“that the legislature used each term advisedly according to its
ordinary and usually accepted meaning.” Hutter, 2009 UT 69, ¶ 32.
Typically, we understand “is” as a present-tense form of the verb
“to be.” See Webster's Third New International Dictionary 1197 (1993).
Accordingly, we assume that the legislature used “is” here as a
present-tense verb.
¶12 While the legislature might have chosen to say that an
employee claiming a permanent total disability must prove that she
was not gainfully employed during the period of the claimed
disability, “[o]ur task is to interpret the words used by the
legislature, not to correct or revise them.” State v. Wallace, 2006 UT
86, ¶ 9, 150 P.3d 540. The Act does not require an employee to
prove that she was not gainfully employed at some prior time, but
that she “is not gainfully employed.” Utah Code Ann.
§ 34A-2-413(1)(c)(i) (emphasis added). Thus, an employee claiming
a permanent total disability must at a minimum prove that she is
not currently gainfully employed. Consequently, under a plain
reading of the statutory text, which we adopt, the Commission
correctly determined that Prows did not establish a permanent
total disability when he was, at the time of the hearing, gainfully
employed.
20130471-CA 5 2014 UT App 196Prows v. Labor Commission
¶13 But Prows maintains that the obvious reading of subsection
413(1)(c) does not square with other subsections of
section 34A-2-413. “Provisions within a statute are interpreted in
harmony with other provisions in the same statute.” Berneau v.
Martino, 2009 UT 87, ¶ 12, 223 P.3d 1128 (citation and internal
quotation marks omitted). First, Prows points to subsection
413(6)(a). That subsection specifies that benefits for a permanent
total disability end when the employee dies or is capable of
returning to work:
(6)(a) The period of benefits commences on the date
the employee became permanently totally disabled,
as determined by a final order of the commission
based on the facts and evidence, and ends:
(i) with the death of the employee; or
(ii) when the employee is capable of returning
to regular, steady work.
Utah Code Ann. § 34A-2-413(6)(a) (LexisNexis 2011). According to
Prows, this subsection “is inconsistent with the notion that
‘returning to regular, steady work’ triggers a complete forfeiture of
accrued benefits.”
¶14 But subsection 413(6)(a) and subsection 413(1)(c)(i) address
two different situations. Subsection 413(1)(c)(i) specifies the result
when a gainfully employed claimant seeks benefits based on a
claimed permanent total disability. Subsection 413(6)(a), on the
other hand, specifies the result when an employee previously
awarded benefits based on a permanent total disability later
becomes capable of returning to work. Id. Despite the previous
award, her benefits end. We understand Prows’s point that this
subsection shows that a permanent total disability may come to an
end. But the statute allows this result only after the Commission
awards benefits for a permanent total disability, not before. If the
disability resolves before an award of benefits, the claimant cannot
claim to be permanently disabled. This is Prows’s circumstance. He
did not become gainfully employed after being awarded benefits
based on a permanent total disability, but before. And the Act states
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explicitly that a person who is currently gainfully employed cannot
establish a permanent total disability.
¶15 Second, Prows points to subsection 413(5)(e)(ii). That
subsection also addresses a post-award change in circumstances. It
mandates that, after an award of benefits for permanent total
disability, the insurer or employer may submit a plan for re-
employment, so long as that plan “include[s] payment of
reasonable disability compensation to provide for the employee’s
subsistence during the rehabilitation process.” Id.§ 34A-2-413(5)(e)(ii). Again, we take Prows’s point that the statute
recognizes that with rehabilitation an employee may overcome
even a disability once adjudicated as “permanent.” But here, the
Commission never made an initial adjudication of permanent total
disability—nor, in the face of his employment, would it have had
any reason to believe that Prows’s disability was permanent. So
this subsection also does not apply.
¶16 Third, Prows points to subsection 413(10). That subsection
also addresses a post-award change in circumstances. It provides
that “[a]n insurer or self-insured employer may periodically
reexamine a permanent total disability claim” under certain
enumerated circumstances. Id. § 34A-2-413(10)(a). This
“[r]eexamination may be conducted no more than once every three
years after an award is final.” Id. § 34A-2-413(10)(b) (emphasis
added). Here, though, the Commission did not award benefits for
a permanent total disability. So this subsection also does not apply.
¶17 Finally, Prows points to subsection 34A-2-423(3). That
subsection provides that accrued disability compensation passes to
the estate of an injured employee who dies before he receives the
compensation. Id. § 34A-2-423(3). But for any benefit to accrue, this
subsection states that the Commission must find “that the
employee is entitled to compensation.” Id. Here, correctly applying
the law, the Commission found that Prows was not entitled to
compensation for a permanent total disability, because he was
gainfully employed. Thus, this subsection also does not apply.
20130471-CA 7 2014 UT App 196Prows v. Labor Commission
¶18 Prows also argues that the Commission’s ruling runs afoul
of King v. Industrial Commission, 850 P.2d 1281 (Utah Ct. App. 1993),
abrogated on other grounds by Murray v. Labor Comm'n, 2013 UT 38,
¶ 28, 308 P.3d 461. King also addresses a post-award change in
circumstance. It holds that an employee awarded temporary
disability benefits does not lose those benefits during periods of
incarceration. Id. at 1296. According to Prows, King supports his
argument that “accrued benefits are not ‘forfeited’ due to
subsequent re-employment.” But King never mentions benefits that
have been accrued. Indeed, no form of the word accrue even appears
in King. Rather, the opinion speaks of benefits that have been
awarded. “Once awarded,” the opinion states, benefits for a
temporary total disability continue until the employee’s condition
has stabilized. Id. at 1292. King does not address the question here:
whether a currently employed claimant may be awarded benefits
for permanent total disability.
¶19 Prows also argues that his employment at the VA Hospital
does not constitute “reasonably available” employment under the
Commission’s regulations and thus should not disqualify him from
a finding of permanent total disability. Aside from requiring a
claimant to prove that he “is not gainfully employed,” the Act
requires a claimant to prove that he cannot perform “other work
reasonably available.” Utah Code Ann. § 34A-2-413(1)(c)(iv)
(LexisNexis 2011). Because Prows does not meet the first
requirement for a finding of permanent total disability—that he is
not gainfully employed—we need not also analyze whether he
meets the fourth requirement—that he cannot perform other work
reasonably available. Moreover, Prows provides no evidence that
his employment at the hospital does not constitute “reasonably
available” employment.
¶20 Finally, Prows relies on a policy argument: that the
Commission erred because, under its decision, an “employee
would be smart to never go back to work until after the case in the
Labor Commission has gone to final hearing.” Prows’s point seems
to be that our reading of the statute will encourage malingering. If
so, we cannot see how adjudicating currently employed claimants
as permanently and totally disabled would solve the problem. The
20130471-CA 8 2014 UT App 196Prows v. Labor Commission
statute mandates that an employee claiming a permanent total
disability must “prove by a preponderance of the evidence” that
she cannot do “the essential functions of the work activities for
which the employee has been qualified” and that she “cannot
perform other work reasonably available.” Id. § 34A-2-413(1)(c).
This requirement strikes us as a direct and sensible response to the
problem of malingering. More to the point, it is the response the
legislature has chosen.
¶21 Additionally, the Act does provide benefits for employees,
like Prows, who suffer temporary total disabilities. Id. § 34A-2-410.
In fact, Prows received benefits for his temporary total disability
until doctors agreed he had reached maximum medical
improvement. After Prows reached maximum medical
improvement, he received benefits for a permanent partial
disability.
CONCLUSION
¶22 We decline to set aside the Commission’s ruling.
20130471-CA 9 2014 UT App 196