Sysco Corp v. Labor Commission

2021 UT App 127
THE UTAH COURT OF APPEALS
SYSCO CORPORATION AND AMERICAN ZURICH INSURANCE,
Petitioners,
v.
LABOR COMMISSION AND PAUL ROBERTS,
Respondents.
Opinion
No. 20200634-CA
Filed November 18, 2021
Original Proceeding in this Court
Brad J. Miller, Attorney for Petitioners
Brian D. Kelm, Attorney for Respondent
Paul Roberts
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 While working as a salesperson for Sysco Corporation,
Paul Roberts was injured in four work-related automobile
accidents, became permanently disabled, and was awarded
workers’ compensation benefits. Now Sysco and its insurance
carrier, American Zurich Insurance, (collectively, Sysco) seek
judicial review of the Labor Commission’s (the Commission)
determination that Sysco forfeited the right to collect an offset,
based on third-party damages Roberts had earlier collected from
civil personal injury claims, against the permanent total
disability (PTD) benefits Sysco was ordered to pay Roberts. We
decline to disturb the Commission’s decision.

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BACKGROUND
¶2 Roberts sought and was awarded PTD benefits based on
injuries he sustained in four different work-related automobile
accidents between 2005 and 2014.1 See Sysco Corp. v. Labor
Comm’n, 2021 UT App 126, ¶¶ 2, 8. Sysco had previously paid
medical expenses and permanent partial disability benefits in
connection with Roberts’s 2014 accident, but Roberts had not
pursued industrial benefits in connection with the three earlier
accidents prior to the fourth accident.
¶3 Apart from seeking workers’ compensation benefits for
his injuries, Roberts had successfully recovered damages from
third parties based on independent civil claims associated with
three of the four automobile accidents, including the last one. In
the course of discovery on the PTD claim, Sysco sought
information regarding Roberts’s involvement in litigation
relating to those accidents and any settlements he had received
as a result of his lawsuits. According to Sysco, it received
inadequate responses from Roberts to its interrogatories
regarding these third-party claims. Sysco filed several motions to
1. On review, Roberts asserts that Sysco cannot claim offsets for
any accidents apart from the one in 2014 because it did not pay
any benefits associated with those accidents. Roberts asserts that
the Commission awarded PTD benefits only for the 2014
accident and not for the three prior accidents. He maintains that
any discussion of the prior accidents merely gave context to the
most recent accident, which “had permanently aggravated a
condition caused by the other three accidents.” However, the
record belies this assertion. Roberts filed four applications for
hearing, asserting that each of the four accidents had contributed
to his PTD claim. Furthermore, the Commission concluded that
he was “permanently and totally disabled as a result of his
multiple work accidents.” (Emphasis added.)

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compel with the administrative law judge (ALJ), which the ALJ
denied. Sysco did not ask the Commission to review the denial
of those motions. Additionally, Sysco never raised the issue of
offsets to the ALJ or the Commission in the context of the
adjudication of Roberts’s PTD claim. At some point, however,
Sysco placed a lien on Roberts’s settlement from the 2014
accident.
¶4 Ultimately, the Commission determined that Roberts “is
permanently and totally disabled as a result of his multiple work
accidents and resulting chronic neck and low-back problems”
and awarded benefits. On March 3, 2020, following the
Commission’s award of PTD benefits, Sysco filed a new motion
to compel requesting information about Roberts’s settlements
relating to the earlier accidents. Roberts responded to the motion
and asserted that he had already provided the requested
information. Furthermore, he asserted that the information was
irrelevant because Sysco could not claim an offset from the third-
party settlements associated with the earlier accidents. However,
Roberts eventually conceded that the entire net proceeds of the
settlement from the 2014 accident should be offset against the
benefits award Sysco was ordered to pay.
¶5 In response to Sysco’s motion to compel, the ALJ issued
an order stating that it was “necessary to hold an evidentiary
hearing in order to enter findings of fact regarding . . . whether
any third-party settlements are applicable to and/or offset the
PTD amounts” and scheduled a hearing to address the offset
issue. In response, Roberts filed an expedited motion for review
with the Commission, asserting that no hearing was needed
regarding the offsets because Sysco had forfeited its right to
assert them. The ALJ cancelled the hearing, but the Commission
nevertheless ruled on the motion for review, determining that
Sysco had waived its right to seek offsets for the third-party
recoveries by failing to raise the issue or present any evidence
relating to it during the underlying benefits adjudication.

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¶6 Sysco filed a motion for reconsideration with the
Commission, reasserting its arguments regarding the offsets and
also arguing that the Commission lacked jurisdiction to consider
the motion for review after the ALJ cancelled the hearing. The
Commission denied Sysco’s motion for reconsideration.
ISSUES AND STANDARDS OF REVIEW
¶7 Sysco now seeks judicial review of the Commission’s
orders and asks us to consider two issues. First, Sysco asserts
that the Commission lacked jurisdiction to issue an order
regarding its forfeiture of the offset issue. “[W]hether an agency
has jurisdiction is a question of law, which we review for
correctness.” Mendoza v. Labor Comm’n, 2007 UT App 186, ¶ 5,
164 P.3d 447.
¶8 Second, Sysco asks us to set aside the Commission’s
determination that it forfeited its right to recover third-party
offsets. “Whether a party properly raises an issue for
adjudication is a question of law, which we review for
correctness.” Grint v. Labor Comm’n, 2007 UT App 114U, para. 1.
ANALYSIS
I. Jurisdiction
¶9 Sysco first asserts that the Commission lacked jurisdiction
to review the ALJ’s order determining that a hearing was
necessary to address the offset issue because the ALJ
subsequently cancelled that order. But in fact, the ALJ did not
cancel the order; it cancelled the hearing. In other words, the
cancellation of the hearing did not alter the portion of the
order Roberts challenged before the Commission—that “the
Court finds it necessary to hold an evidentiary hearing . . .
regarding . . . whether any third-party settlements are applicable

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to and/or offset the [PTD benefits].” In fact, the notice of
cancellation is silent as to the reason for the cancellation; there is
nothing to suggest that the ALJ would not reschedule the
hearing for another date.
¶10 “A party in interest may appeal the decision of an
administrative law judge by filing a motion for review with the
[Commission] within 30 days of the date the decision is issued.”
Utah Code Ann. § 34A-2-801(4)(a) (LexisNexis 2019). Roberts’s
expedited motion for review asserted that it was unnecessary for
the ALJ to hold a hearing regarding the offsets because Sysco
had forfeited its right to pursue them. As the ALJ had issued an
order indicating that such a hearing was necessary, the issue of
Sysco’s forfeiture was raised in Roberts’s expedited motion and
was properly before the Commission.
¶11 Sysco nevertheless asserts that it should have been
afforded a hearing on the issue of offsets in front of the ALJ
before the Commission considered that matter. In doing so, it
compares the Commission to an appellate court, which requires
issues to be raised and addressed in a lower tribunal before they
can be asserted on appeal. See State v. Johnson, 2017 UT 76,
¶¶ 40–44, 416 P.3d 443 (discussing the dangers of appellate
courts considering issues that have not been fully argued by the
parties or adequately addressed by lower tribunals).
¶12 However, the same policies underlying an appellate
court’s preservation and waiver requirements do not apply to
the situation at hand. Unlike appellate courts, which are not fact-
finding bodies, the Commission has “fact-finding authority.”
Columbia HCA v. Labor Comm’n, 2011 UT App 210, ¶ 6, 258 P.3d
640; see also Utah Code Ann. § 34A-1-303(4)(c) (LexisNexis 2019)
(authorizing the Commission to base its decision either on
“evidence previously submitted in the case” or on
“supplemental evidence”); cf. Day v. Barnes, 2018 UT App 143,
¶ 16, 427 P.3d 1272 (explaining that a district court’s review of a

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commissioner’s recommendation is not “appeal-like” and
“instead requires independent findings of fact and conclusions
of law based on the evidence” (quotation simplified)). And
either an ALJ or the Commission has the authority to adjudicate
an issue for the first time. See Columbia HCA, 2011 UT App 210,
¶ 6 (rejecting an argument that an issue was unpreserved
because a party had raised it for the first time in front of the
Commission rather than the ALJ). Thus, the Commission had the
authority to review, in the first instance, the question of whether
Sysco had forfeited its right to raise the offset claim.
II. Forfeiture of the Offset Claim
¶13 Sysco next asserts that the Commission erred in
determining that Sysco had waived its right to seek offsets
because that issue was not considered during the adjudication of
Roberts’s claim to PTD benefits. Sysco cites Larsen Beverage v.
Labor Commission, 2011 UT App 69, 250 P.3d 82, for the
proposition that it could not waive its right to offsets without
doing so clearly and intentionally. See id. ¶ 11. But the type of
waiver addressed in Larsen Beverage is different from that at issue
in this case.
¶14 Larsen Beverage addressed the question of whether the
employer had intentionally given up its right to seek
reimbursement from the Employers Reinsurance Fund by
entering into a stipulation to pay benefits—in other words, it
concerned a true waiver. See id. ¶ 8. To determine that a party
has agreed to give up a right, as the Employers Reinsurance
Fund alleged in Larsen Beverage, “the waiver must be clear and
unmistakable.” Id. ¶ 11 (quotation simplified); accord Medley v.
Medley, 2004 UT App 179, ¶ 10, 93 P.3d 847; cf. State v. Pedockie,
2006 UT 28, ¶ 28, 137 P.3d 716 (explaining that a “[t]rue waiver”
of a right to counsel is clear and unequivocal).
¶15 But here, Roberts did not allege that Sysco agreed to give
up a right. Rather, he alleged that Sysco forfeited its right to seek

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an offset by failing to raise its offset demand in a timely manner.
“Although the terms ‘waiver’ and ‘forfeiture’ are often used
interchangeably in Utah case law, the two concepts are
fundamentally different. Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.” State v.
Williams, 2020 UT App 67, ¶ 32, 462 P.3d 832 (quotation
simplified); accord In re adoption of Baby E.Z., 2011 UT 38, ¶ 51 n.1,
266 P.3d 702 (Lee, J., concurring); see also Taylor v. University of
Utah, 2020 UT 21, ¶ 50 & n.10, 466 P.3d 124 (electing to use the
term “forfeit” rather than “waive” in discussing the effects of
appellants’ failure to raise an issue in their opening brief because
the court did “not opine (or know) if the [appellants]
relinquished their argument intentionally”).
¶16 A party has an “obligation to raise all the issues that could
have been presented” before the Commission, and “those issues
not raised [are] waived”—or, more precisely, forfeited. See Pease
v. Industrial Comm’n, 694 P.2d 613, 616 (Utah 1984); see also
Ashcroft v. Industrial Comm’n, 855 P.2d 267, 268 (Utah Ct. App.
1993) (holding that a party had forfeited “claims that could have
been presented to the Commission” but were not). Here, Roberts
had entered into the settlements with third parties long before
filing his claim for PTD benefits, so Sysco had the opportunity to
raise the offset issue in the course of adjudicating that claim.
However, it did not do so.
¶17 Sysco points to its “multiple attempts to seek evidence of
third-party settlements” as support for its argument that it did
not forfeit the right to seek offsets and spends a good part of its
brief pointing out the discovery requests it made and the
deficiencies in Roberts’s responses. But any shortcomings in
Roberts’s discovery responses are not properly before us. The
ALJ denied Sysco’s motions to compel, and Sysco did not ask the
Commission to review that denial. And ultimately, Sysco did not
raise the issue of its entitlement to offsets before either the ALJ or

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the Commission. Further, its discovery attempts do not
demonstrate a lack of forfeiture. In fact, if anything, they suggest
that Sysco did forfeit its entitlement to offsets, as it appears to
have abandoned its earlier attempts to pursue the offsets by not
raising discovery issues before the Commission. Thus, the
Commission did not err in determining that Sysco had forfeited
its right to seek offsets.
CONCLUSION
¶18 The Commission had jurisdiction to review the ALJ’s
order determining that a hearing on offsets was necessary.
Moreover, the Commission did not err in determining that Sysco
had forfeited its right to pursue offsets by failing to assert them
when adjudicating Roberts’s PTD claim. Accordingly, we decline
to disturb the Commission’s decision.