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Color Country Management v. Labor Commission12/6/2001
by January 20, 1998, Thomas had reached medical stability with permanent impairments to her left shoulder consisting of limitations to her range of motion, "joint crepitation, and distal clavicle resection." The Board determined that Thomas had a twenty-nine percent impairment of the left shoulder, which it equated as a seventeen percent whole person impairment. The Board described the neck impairment as "critical signs of impairment without radiculopathy or loss of motion, but with some evidence of arthritis for 5% whole person impairment." The Board determined that these impairments, when combined, produced a twenty percent whole person impairment.
The Board agreed with the earlier findings by the ALJ that Thomas could not perform other work reasonably available when taking into consideration her "age, education, past work experience, medical capacity and residual functional capacity." The Board noted that Thomas had over thirty years experience as a certified nursing assistant, but that she could not resume those duties due to her impairment. The Board found that she could not return to her job at Sizzler due to her impairment, and that her circumstances limited her ability to do other work reasonably available in the area where she lived.
The Board then examined the reemploymnet plan that Color Country submitted. The Board noted that the plan did not provide for "education, training, accommodation of physical problems or payment of continuing disability compensation to provide for . . . subsistence during the period of rehabilitation and reemployment."
Based on its findings, the Board concluded that Thomas had carried her burden of proving permanent total disability and that she was entitled to an award of $131 per week, reduced from the $140 per week awarded by the ALJ.
After the Board's October 31, 2000 decision affirming the ALJ's rejection of the reemployment plan and the award of permanent total disability, Color Country filed a petition for judicial review in this court pursuant to section 34A-2-801(8), section 63-46b-16, and Rule 14 of the Utah Rules of Appellate Procedure.
On January 22, 2001, the Commission denied the motion for review of the abstract by stating that the Appeals Board would not take any action on the motion for review of the abstract because "it appears your motion for review is moot" due to a stay granted by the district court.
ISSUES AND STANDARD OF REVIEW
On appeal, Color Country argues that (1) the Commission misinterpreted Utah Code Ann. § 35-1-67 (1994); (2) its due process rights were violated by the Commission, and if the Commission interpreted and applied section 35-1-67 correctly, then section 35-1-67 is unconstitutional on its face and as applied; and (3) the abstract was improperly issued because there was no final order at the time it was issued.
"Judicial review of final agency actions is governed by the Utah Administrative Procedures Act." Viktron/Lika Utah v. Labor Comm'n, 2001 UT App 8, , 18 P.3d 519. Under section 63-46b-16, we may grant relief "only if, on the basis of the agency's record, determine that [Color Country] has been substantially prejudiced" because "the agency action, or the statute or rule on which the agency action is based, is unconstitutional on its face or as applied" or if "the agency has erroneously interpreted or applied the law." Utah Code Ann. § 63-46b-16(4)(a), (d) (1997).
Whether the statute itself is unconstitutional, and whether the agency interpretation of the statute is unconstitutional or incorrect, are questions of law that are reviewed under a correction of error standard. See Esquivel v. Labor
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