C.R. England v. Hakem , 2021 UT App 108 ( 2021 )

2021 UT App 108THE UTAH COURT OF APPEALS
C.R. ENGLAND AND
INDEMNITY INSURANCE CO. OF NORTH AMERICA,
Petitioners,
v.
LABOR COMMISSION AND MANSOOR HAKEM,
Respondents.
Opinion
No. 20200181-CA
Filed October 15, 2021
Original Proceeding in this Court
Christin Bechmann and Jeffrey A. Callister,
Attorneys for Petitioners
Ryan J. Schriever and W. Andrew Penrod, Attorneys
for Respondent Mansoor Hakem
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.
ORME, Judge:
¶1 C.R. England and its insurer, Indemnity Insurance Co. of
North America, petition for judicial review of the Utah Labor
Commission’s order directing it to pay temporary total disability
(TTD) benefits to Mansoor Hakem. Hakem filed what he styled a
“cross-appeal” seeking further TTD benefits. We decline to
address Hakem’s purported cross-appeal because our rules of
appellate procedure and the relevant statutory provisions do not
allow for cross-petitions in proceedings for judicial review of
agency action. We therefore lack jurisdiction to consider
Hakem’s “cross-appeal,” which was filed more than 30 days
following entry of the final order. On the merits of England’s
petition, we set aside the Commission’s order directing England
to pay TTD benefits because the order was not supported by
C.R. England v. Labor Commission
substantial evidence and instruct the Commission to reconsider
its order consistent with the guidance in this opinion.
BACKGROUND 1
¶2 On June 9, 2015, Hakem was injured while working for
England. 2 Hakem then filed a claim with England for TTD
benefits. 3 It is not clear in the record, however, when England
began paying these benefits. On October 2, 2015, England made
an offer of light-duty work to Hakem, which Hakem rejected on
October 14, 2015. Despite this rejection, England claims to have
continued paying TTD benefits totaling $54,510 to Hakem. At
some point in 2016, it appears that England discontinued making
TTD benefit payments. Again, the timing of this discontinuation
is not entirely clear in the record, and this is the focus of
England’s petition for review.
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.” O'Connor v. Labor Comm'n, 2020
UT App 49, n.1, 463 P.3d 85.
2. Because the crux of England’s petition for review concerns the
timing and amount of the TTD benefit payments, and because
we ultimately do not address the issues Hakem raises, we have
no need to recite all the facts regarding Hakem’s injury and
treatment or the findings made by the medical panel, the
administrative law judge, and the Commission regarding that
injury.
3. England also paid over $30,000 toward Hakem’s medical bills,
but because England does not raise any issue with these
expenses, we do not mention them further.
20200181-CA 2 2021 UT App 108C.R. England v. Labor Commission
¶3 In December 2016, Hakem filed a claim with the
Commission seeking TTD benefits from June 10, 2015, until the
date on which he achieved maximum medical improvement. In
its answer to Hakem’s claim, England asserted that it had
already paid Hakem $54,510 in TTD benefits, but it failed to
include any dates for those payments. In September 2018, the
matter proceeded to a hearing before an administrative law
judge (the ALJ). During the hearing, England orally affirmed
that it made TTD benefit payments to Hakem. First, it asserted
that it paid TTD benefits to Hakem “until he was released at
maximum medical improvement,” and later it argued that
“[Hakem] is requesting TTD benefits from June 10, 2015, through
the present,” even though England “paid . . . these benefits
through October.” These are the only two references England
made during the hearing to its prior payments of TTD benefits,
and England did not provide, as far as we can tell from the
record, any evidentiary support for these assertions or even
specific dates of payment. All England asserted was that it paid
benefits through “October,” without specifying a year. To
confuse matters more, at the end of the hearing Hakem informed
the ALJ that he was now claiming TTD benefits “from October
14, 2015, to a date of medical stability.” This time period
included many months during which England claimed to have
already paid TTD benefits.
¶4 The ALJ then referred the case to a medical panel and
subsequently denied further TTD benefits to Hakem. In his
order, however, the ALJ seems to have confused the dates in
question. The ALJ began the order by first stating, with our
emphasis, that “[t]he panel’s opinion will assist the Court in
determining the relevant question of whether [Hakem] retained
the ability to perform any work after October 2, 2016.” The ALJ
continued, again with our emphasis, that
[b]ased on the different opinions, the Court
referred this issue to a medical panel in order to
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assist the Court in determining whether [Hakem]
could return to light-duty work or if he was
restricted from all work at any point after October
2, 2015.
The medical panel determined [Hakem] did not
have a biomechanical impairment in function, but
he was limited in his ability to function due to his
pain and required light duty [restrictions] after
October 2, 2015. . . . Therefore, because light-duty
work was made available to [Hakem] and he failed
to accept the work, he is not entitled to total
disability compensation after October 13, 2014.
¶5 Hakem sought review of the ALJ’s order by the
Commission. The Commission affirmed the ALJ’s order but
amended it, sua sponte, in an attempt to fix the ALJ’s apparent
confusion about the operative dates. It stated that the ALJ’s
decision to deny Mr. Hakem [TTD benefits] seems
to be based on CR England’s proffer of light-duty
work on October 2, 2015, and his effective refusal
of such assignment. [The ALJ] then sought to
ensure Mr. Hakem’s ability to perform light-duty
work as of that date by posing such question to the
medical panel, but erroneously describing the date
as 2016 rather than 2015. Despite this error, [the
ALJ] relied on the panel’s opinion that Mr. Hakem
could work light duty as evidence that the proffer
of such work from CR England was appropriate.
The parties have not attempted to bring
these errors to light on review. Instead their
present dispute focuses on the medical panel’s
conclusions.
The Commission further explained:
20200181-CA 4 2021 UT App 108C.R. England v. Labor Commission
After considering the evidence on this point, the
Commission agrees with [the ALJ] that Mr. Hakem
has not established entitlement to [TTD] benefits
beginning October 14, 2015, as CR England had
made a proffer of light-duty work to him by that
date. However, Mr. Hakem is entitled to [TTD]
benefits for certain periods during which he was
not able to perform even light-duty work.
¶6 The Commission concluded, after reviewing Hakem’s
medical records, that Hakem was released from all work by his
doctor on February 3, 2016, and then released only for light-duty
work on June 15, 2016. The Commission thus ordered England to
pay Hakem $14,899.40 in TTD benefits for that February-to-June
time period. England then filed a request for the Commission to
reconsider its order, arguing that its decision to award TTD
benefits to Hakem from February 3, 2016, to June 14, 2016, was
“not supported by sufficient evidence” and “erroneously sets
aside [the] findings of . . . [the ALJ] based on a typographical
error.” On January 29, 2020, the Commission denied the motion,
stating that substantial evidence existed from Hakem’s medical
records to show that Hakem was released from all work from
February 3, 2016, to June 14, 2016, and should receive benefits for
that time period.
¶7 On February 26, 2020, within 30 days of the Commission’s
final order, England filed a petition for review in this court.
Hakem then purported to file a “cross-appeal” on March 5, 2020,
asserting error with the ALJ’s and the Commission’s decisions
regarding the offer for light-duty work and the denial of further
benefits on that basis.
ISSUES AND STANDARDS OF REVIEW
¶8 Hakem raises multiple issues in his cross-petition. But we
must first determine whether we have jurisdiction to consider
20200181-CA 5 2021 UT App 108C.R. England v. Labor Commission
the petition. “Questions about appellate jurisdiction are
questions of law.” See Zion Village Resort LLC v. Pro Curb U.S.A.
LLC, 2020 UT App 167, ¶ 21, 480 P.3d 1055 (quotation
simplified). And because we determine that we lack jurisdiction
to consider it, we are required to dismiss Hakem’s petition. See
id.
¶9 England asserts that the Commission erred in granting
TTD benefits to Hakem for the period of February 3, 2016, to
June 14, 2016, because England had already paid those benefits
to Hakem, resulting in Hakem receiving a double benefit.
Because this is a factual issue, we review the Commission’s order
for substantial evidence. Utah Am. Energy Inc. v. Labor Comm'n,
2021 UT App 33, ¶ 12, 484 P.3d 1195. “A decision is supported
by substantial evidence if there is a quantum and quality of
relevant evidence that is adequate to convince a reasonable mind
to support a conclusion.” Ivory Homes, Ltd. v. Utah State Tax
Comm'n, 2011 UT 54, ¶ 11, 266 P.3d 751 (quotation simplified).
ANALYSIS
I. Jurisdiction Over Hakem’s Cross-Appeal
¶10 The Utah Administrative Procedures Act (UAPA) governs
judicial review of state agency action. See Utah Code Ann.
§§ 63G-4-101 to -601 (LexisNexis 2018). UAPA states that “[a]
party shall file a petition for judicial review of final agency
action within 30 days after the date that the order constituting
the final agency action is issued[.]” Id. § 63G-4-401(3)(a). And
“[t]o seek judicial review of final agency action resulting from
formal adjudicative proceedings, the petitioner shall file a
petition for review of agency action with the appropriate
appellate court in the form required by the appellate rules of the
appropriate appellate court.” Id. § 63G-4-403(2)(a). Rule 14 of the
Utah Rules of Appellate Procedure, in turn, states that “[w]hen a
statute provides for judicial review by or appeal to the Supreme
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Court or the Court of Appeals of an order or decision of an
administrative agency, . . . a party seeking review must file a
petition for review . . . within the time prescribed by statute[.]”
Utah R. App. P. 14(a). Rule 18 further directs that “[a]ll
provisions” of the rules of appellate procedure “are applicable to
review of decisions or orders of agencies, except that Rules 3
through 8 are not applicable.” Id. R. 18. Thus, rule 4, which
allows parties to cross-appeal in appeals arising from judicial
proceedings, does not apply to proceedings for review of agency
decisions. See id. R. 4(d); Watson v. Labor Comm'n, 2020 UT App
170, ¶ 1 n.1, 480 P.3d 353 (noting that “because the rules of
appellate procedure do not allow for a cross-petition in the
administrative context, akin to a cross-appeal in a judicial
proceeding, each party must file its own petition for review if
they both wish to contest the administrative agency’s ruling”).
We note that UAPA likewise does not contain a provision
allowing cross-petitions. Instead, it directs that parties shall file
petitions for review within 30 days of an agency’s final order. See
Utah Code Ann. § 63G-4-401(3)(a).
¶11 Thus, parties wishing to challenge any part of an agency
decision governed by UAPA must file their own petition for
review within 30 days of the agency’s final order. See id.; Utah R.
App. P. 14(a). And “[w]e cannot infer a right to file a
cross-petition within an additional period of time where the
Utah Legislature did not include such a provision in UAPA,”
Viktron/Lika Utah v. Labor Comm'n, 2001 UT App 8, ¶ 7, 18 P.3d
519, particularly given that our rules expressly exclude the
availability of that procedural tool, see Utah R. App. P. 18.
¶12 In this case, the Commission’s order became final on
January 29, 2020, when it denied England’s motion for
reconsideration. Both parties then had 30 days to file a petition
for review with this court. England timely filed its petition for
review on February 26. Hakem, on the other hand, did not file a
petition for review within that 30-day window. Rather, he filed a
20200181-CA 7 2021 UT App 108C.R. England v. Labor Commission
“cross-appeal” on March 5. And, as noted above, our caselaw,
the applicable rules, and UAPA clearly indicate that cross-
appeals or cross-petitions are not available when we review
agency action. 4 See Watson, 2020 UT App 170, ¶ 1 n.1; Viktron/Lika
Utah, 2001 UT App 8, ¶ 7. Therefore, we lack jurisdiction to
consider Hakem’s cross-petition. And even if we were to
construe it as a petition for review under the statute, see
Viktron/Lika Utah, 2001 UT App 8, ¶ 8 (“We may construe a filing
with this court according to its content, regardless of its
caption.”), we would nonetheless lack jurisdiction to consider
the issues raised because it was filed outside the 30-day
deadline. 5 Therefore, we are required to dismiss Hakem’s cross-
4. We acknowledge this court’s role in Hakem’s confusion on his
ability to file a “cross-appeal,” as we accepted his briefs and
even charged and collected a cross-appeal filing fee. We
permitted the “cross-appeal” to move along until it was placed
with a panel for resolution on its merits. We regret our failure to
detect the problem sooner, and we should have dismissed the
“cross-appeal” before the parties spent time and resources in
briefing it. But ultimately, mistakes on a court’s part cannot
overcome a lack of jurisdiction. See In re adoption of Baby E.Z.,
2011 UT 38, ¶ 25, 266 P.3d 702 (“Because subject matter
jurisdiction goes to the heart of a court’s authority to hear a case,
it is not subject to waiver and may be raised at any time[.]”)
(internal citations omitted). We will direct our clerk of court to
refund the cross-appeal filing fee charged to Hakem because it
was improvidently collected.
5. At oral argument before this court, Hakem asserted that
because UAPA grants us “jurisdiction to review all final agency
action resulting from formal adjudicative proceedings,” see Utah
Code Ann. § 63G-4-403(1) (LexisNexis 2018) (emphasis added),
and because England filed a petition for review within 30 days,
we have jurisdiction over the issues Hakem raises because they
(continued…)
20200181-CA 8 2021 UT App 108C.R. England v. Labor Commission
petition. 6 See Barney v. Division of Occupational & Pro. Licensing,
828 P.2d 542, 544 (Utah Ct. App. 1992) (“If the court concludes
(…continued)
were dealt with in the Commission’s order. This is an expansive
view of jurisdiction that we cannot adopt. In essence, Hakem is
asserting that once a party files a petition for review of an agency
action, the opposing party has unlimited time to raise issues of
its own because that first petition vested the court with plenary
jurisdiction over all aspects of the agency’s ruling. This does not
comport with UAPA, which requires parties to file their petitions
for review within 30 days, see id. § 63G-4-401(3)(a), and we see
nothing in the statute, applicable rules, or caselaw that would
allow for this expansive approach to our jurisdiction.
6. We do, however, renew our concern with the current statutory
and rule-based scheme in place for judicial review of agency
action. We see wisdom in a rule, akin to what exists in an appeal
from a judicial proceeding, that allows for cross-petitions in
proceedings for judicial review of agency action. Not only would
this increase judicial efficiency, as we recently explained in
Watson v. Labor Commission, 2020 UT App 170, ¶ 1 n.1, 480 P.3d
353, it would also undoubtedly benefit the parties in these
situations. For example, after an order has been issued by an
agency, one side may not be completely satisfied with the order
but may be satisfied enough that it does not believe it worth the
trouble to file a petition for review and pursue further
proceedings just to fine tune the decision substantially in its
favor. But if the opposing party files a petition for review and
the substantially prevailing party is to find itself before the
appellate court anyway, that party should have the opportunity
to raise issues in a cross-petition. This is the very logic that
permits cross-appeals in the context of judicial proceedings, and
we can think of no reason why that procedure would not work
as well in the administrative review context. We therefore
(continued…)
20200181-CA 9 2021 UT App 108C.R. England v. Labor Commission
that it does not have jurisdiction, it retains only the authority to
dismiss the action.”) (quotation simplified).
¶13 At oral argument before this court, Hakem, citing Hamer
v. Neighborhood Housing Services of Chicago, 138 S. Ct. 13 (2017),
argued that our procedural rules that explicitly do not allow for
cross-petitions cannot dictate jurisdiction in our review of
agency proceedings. See Utah R. App. P. 4, 14, 18. Even aside
from the fact that UAPA itself requires parties to file a petition
within 30 days and does not provide a party with the possibility
of a cross-petition, this argument is unavailing for two
additional reasons.
¶14 First, UAPA directs that parties petitioning for review
must file a petition “with the appropriate appellate court in the
form required by the appellate rules of the appropriate appellate
court.” Utah Code Ann. § 63G-4-403(2)(a) (emphasis added).
Thus, the statute that grants this court jurisdiction over these
reviews also grants the Supreme Court the ability to control that
jurisdiction through its rules. Hamer clearly does not apply as it
dealt with jurisdiction in the federal context, see 138 S. Ct. at 17(“Only Congress may determine a lower federal court’s
subject-matter jurisdiction.”) (emphasis added) (quotation
otherwise simplified), and not in a state context where the state
legislature grants a court the authority to manage jurisdiction
through its own rules.
(…continued)
believe our Supreme Court should direct its Advisory
Committee on the Rules of Appellate Procedure to consider
amendments to the applicable rules that would enable parties in
administrative proceedings to file cross-petitions. And to the
extent that statutory changes are needed to effect such a change,
appropriate statutory amendments should also be considered by
our Legislature.
20200181-CA 10 2021 UT App 108C.R. England v. Labor Commission
¶15 Second, our Supreme Court has held that the applicable
Utah Rules of Appellate Procedure have “jurisdictional effect.”
State v. Lara, 2005 UT 70, ¶ 12, 124 P.3d 243 (quotation
simplified). Specifically, deadlines for filing notices of appeal are
“jurisdictional in nature.” State v. Collins, 2014 UT 61, ¶ 22, 342
P.3d 789 (quotation simplified). The same is true for petitions for
judicial review, and courts are “depriv[ed] . . . of jurisdiction”
when petitions for review are untimely filed. Union Pacific R.R.
Co. v. Utah State Tax Comm'n, 2000 UT 40, ¶ 25, 999 P.2d 17. See
also Ortega v. Ridgewood Estates LLC, 2016 UT App 131, ¶ 30, 379
P.3d 18 (“We are bound by vertical stare decisis to follow strictly
the decisions rendered by the Utah Supreme Court.”) (quotation
simplified).
¶16 For these reasons, we dismiss Hakem’s cross-appeal for
lack of jurisdiction.
II. TTD Benefits
¶17 England’s main argument 7 asserted in its timely petition
for review is that the Commission erred, not because it
7. England raises two additional issues. First, it asserts that the
Commission’s order was arbitrary and capricious because the
Commission “raised the typographical error without involving
the parties or taking the time to verify whether the period was
even in dispute.” Because we instruct the Commission to
reconsider its decision on the basis that its order was not
supported by substantial evidence, giving it the opportunity to
remedy any error, we have no need to address this ancillary
issue.
Second, England asserts its due process rights were violated
when the Commission corrected the ALJ’s order sua sponte. We
briefly address this issue because it may arise again if the
Commission finds that England did not make the payments it
(continued…)
20200181-CA 11 2021 UT App 108C.R. England v. Labor Commission
determined that Hakem was entitled to TTD benefits, but
because it awarded a double benefit to Hakem by requiring
England to pay a second round of TTD benefits for the period
from February 3, 2016, to June 14, 2016. There clearly was
confusion on the part of the ALJ, and possibly on the part of the
Commission, concerning the dates relevant to Hakem’s
entitlement to benefits. We will not directly wade into that
debate because England has asserted on review that “[i]n the
end . . . the dates do not matter because it does not change the
outcome of the case, specifically, [England] had already paid
sixty-nine weeks of TTD.”
¶18 In the proceedings before the Commission, however,
there was scant evidence of these payments. England directs us
to only two locations in the record, and we are unaware of any
(…continued)
claims to have made and reinstates its original order. See State v.
Low, 2008 UT 58, ¶ 61, 192 P.3d 867 (stating that when “there are
other issues presented on appeal that will likely arise” on
remand, we may “exercise our discretion to address those issues
for purposes of providing guidance on remand”).
We disagree with England that the Commission erred in
fixing a typographical error sua sponte. Pursuant to Utah Code
section 34A-2-420(1), the Commission is granted “continuing”
jurisdiction over each case before it and “may from time to time
modify or change a former finding or order of the commission.”
Furthermore, our Supreme Court has held that “the power of the
Commission as to its continuing jurisdiction . . . is extended to
the right to rescind, alter, or amend orders, decisions, or awards
on good cause appearing therefor.” Frito-Lay v. Utah Labor
Comm'n, 2009 UT 71, ¶ 25, 222 P.3d 55 (quotation simplified).
Thus, the Commission has the prerogative to adjust awards and
correct mistakes, and it did not violate England’s due process
rights in attempting to correct the mistakes it saw here.
20200181-CA 12 2021 UT App 108C.R. England v. Labor Commission
others, where it provided “evidence” of these payments. It first
cites its answer to Hakem’s claim for benefits in which it simply
asserted that it had already paid $54,510 in TTD benefits to
Hakem from the date of the injury. Second, it cites its assertions
in the hearing before the ALJ when it claimed that it paid TTD
benefits to Hakem “until he was released at maximum medical
improvement” and that “[Hakem] is requesting TTD benefits
from June 10, 2015, through the present,” even though it “paid
. . . these benefits through October.” England did not submit any
documents substantiating these assertions, and neither the ALJ
nor the Commission made any findings premised on England’s
assertions.
¶19 On review, England claims that it “submitted the
undisputed summary of benefits paid showing [it] had paid
Hakem $54,510 in [TTD benefits].” But then to back up this
claim, England cites its answer to Hakem’s claim and nothing
else, let alone a location in the record where we might find the
“summary of benefits” it allegedly paid. Nor is such a summary
attached as an exhibit to its answer. England then contends that
we can derive the dates of the payments through simple math.
Hakem was entitled to $790 per week in TTD benefits. By taking
the $54,510 England asserts it paid and dividing it by $790,
Hakem received sixty-nine weeks of payments. And sixty-nine
weeks from June 9, 2015, ends on October 4, 2016. Thus, England
claims that it clearly made payments to Hakem during the
period of February 3, 2016, to June 14, 2016, and that the
Commission ordered it to pay duplicative TTD benefits to
Hakem for that period.
¶20 While the math appears to be correct, on review we are
unable to directly grant the relief England seeks because of the
evidentiary gaps in the record regarding these payments. First,
there is no evidence of when England actually began making
payments to Hakem; it could have been the exact day of
Hakem’s injury, as England claims, but we cannot determine
20200181-CA 13 2021 UT App 108C.R. England v. Labor Commission
that and have no way of knowing on which dates England
actually made payments. Second, and most importantly, there
simply is nothing in the record to substantiate England’s specific
claim that it paid a total of $54,510 in TTD benefits. There are no
documents in the record detailing what Hakem received and
when. England is essentially asking us to make a finding,
without any substantive record evidence, that it made the
payments during the disputed time period and then direct the
Commission to rescind its order requiring England to make
additional payments. This is something we typically will not do.
See Willey v. Willey, 951 P.2d 226, 230 (Utah 1997) (“If the
appellate court determines that the findings of fact are
insufficient to support the conclusion, the appellate court
normally remands the matter . . . for further proceedings.”).
¶21 But we do recognize the basic merit of England’s
complaint and set aside the Commission’s order because it is
not, so far as we can ascertain, supported by substantial
evidence. The Commission ordered England to pay
approximately 18 weeks of TTD benefits, and there is some
indication in the record that England had already made
payments applicable to that time period. Thus, we set the
Commission’s order aside and instruct it to determine whether
England had already made TTD payments from February 3,
2016, to June 14, 2016, as England claimed before the ALJ. The
Commission is to ensure that no payments it required England
to make were duplicative. If England did, in fact, already make
these payments during that time period, then the Commission
shall decline to award Hakem any further TTD benefits. If the
Commission finds that England did not make those payments,
or at least did not make all of them, then it can simply reinstate
or adjust its original order, as appropriate.
20200181-CA 14 2021 UT App 108C.R. England v. Labor Commission
CONCLUSION
¶22 Because UAPA and our rules of appellate procedure do
not allow for cross-petitions in proceedings for judicial review of
agency action, we do not have jurisdiction to consider Hakem’s
“cross-appeal,” and we have no option other than to dismiss it.
On the merits of England’s petition, we set aside the
Commission’s order on the ground that it is not supported by
substantial evidence and direct the Commission to determine
whether England has already paid Hakem all TTD benefits to
which he is entitled.
20200181-CA 15 2021 UT App 108