Darden Restaurant v. Labor Commission

2024 UT App 153

THE UTAH COURT OF APPEALS

DARDEN RESTAURANT AND XL INSURANCE AMERICA INC.,
Petitioners and Cross-respondents,
v.
CHINYU JAMES SUN,
Respondent and Cross-petitioner,
v.
LABOR COMMISSION,
Respondent.

Opinion
No. 20230743-CA
Filed October 24, 2024

Original Proceeding in this Court

Eric J. Pollart and Jeffrey A. Callister,
Attorneys for Petitioners and Cross-respondents
Aaron J. Prisbrey, Attorney for Respondent and
Cross-petitioner

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

OLIVER, Judge:

¶1 Chinyu James Sun suffered injuries to his neck and
shoulder when he slipped and fell at work. He never reported the
incident to his employer, Darden Restaurant (Darden), who was
notified only when he filed a workers’ compensation claim 300
days later. An administrative law judge (the ALJ) found Sun had
failed to comply with the reporting requirements of the Workers’
Compensation Act, see Utah Code § 34A-2-407 (the Reporting
Statute), and dismissed his claims with prejudice.

¶2 Sun sought review with the Appeals Board (the Board) of
the Utah Labor Commission (the Commission). The Board
Darden Restaurant v. Labor Commission

affirmed the ALJ’s determination that Sun’s shoulder injury was
barred for lack of timely notice, but it remanded the matter to the
ALJ for further proceedings regarding Sun’s neck injury. In light
of a material dispute in medical opinions from various physicians,
the ALJ appointed a medical panel. After reviewing the medical
panel’s report, the ALJ ordered Sun’s employer to pay temporary
total disability compensation as well as necessary and ongoing
medical care for his neck injury. Sun sought review of the ALJ’s
determination because it did not address his shoulder injury. The
Board affirmed the ALJ’s award of benefits to Sun for his neck and
affirmed the ALJ’s prior decision that Sun’s shoulder claim was
barred. Both Darden and Sun brought petitions for judicial
review. We decline to disturb the Board’s decision as to the
shoulder claim, but we set aside the Board’s order as to the neck
claim because both were barred as untimely.

BACKGROUND

¶3 Sun was employed as a manager at a restaurant owned by
Darden. In July 2020, Sun was carrying a large plastic tub at work
that he had filled with ice when he slipped and fell, hitting his
head on the wall and his right shoulder on the ice machine. Sun
landed on his back with the ice bucket on top of him. Sun’s “whole
upper body hurt but his right shoulder hurt the worst.” Two of
Sun’s coworkers helped him up, and Sun was able to finish his
shift. He did not file an accident report with Darden, but he
claimed to have left a voicemail message with Darden’s director
of operations (the Director) about the accident (the Accident).

¶4 Before the Accident, Sun had been treated for complaints
related to pain in both of his shoulders and was scheduled to have
surgery on his right shoulder in August 2020. A week before that
surgery, Sun’s orthopedic surgeon ordered an MRI after Sun
complained of being in “a lot more pain” and mentioned
something about a fall. The MRI showed “a moderate sized near
full-thickness bursal sided tear” on Sun’s right shoulder. Sun

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underwent surgery on his right shoulder in August, as scheduled,
and was placed off work afterwards.

¶5 In December 2020, Sun returned to his surgeon,
complaining of pain in both shoulders and cramping in his neck.
When an MRI of his right shoulder showed no tear, Sun
underwent an MRI of his cervical spine, 1 which showed “joint
disease and degenerative disc disease.” The following month, Sun
reported to the Director a years-earlier fall at work that had
injured his left shoulder when he was employed at one of
Darden’s restaurants in Colorado. In February 2021, the Director
then filed a workers’ compensation claim for the accident in
Colorado. That claim was ultimately denied.

¶6 That same month, Sun was evaluated by a physiatrist for
pain management. In his treatment notes, the physiatrist
described Sun as a “51-year-old gentleman, who 3 years ago fell
while at work injuring his left shoulder and his neck.” Sun’s
surgeon declared him fit to go back to work “full duty with no
restrictions regarding his shoulders.” Sun also went to an
orthopedic spine surgeon for surgical recommendations to
alleviate his neck pain.

¶7 In April 2021, Sun filed a claim with the Commission based
on the Accident, seeking an award of temporary total disability
benefits, medical expenses, and ongoing medical care. The ALJ
held an evidentiary hearing in June 2022. Sun testified about the
Accident as described above. Sun’s testimony confirmed that, as
a manager who had to file reports when employees were injured,
he was aware of how to report workplace accidents.

¶8 On cross-examination, Sun initially asserted that on the
day of the Accident, he left a voicemail with the Director in which

1. The cervical spine is “the neck area” of the spine and “consists
of the first seven vertebrae”—C1 to C7—of the spine. Cervical
Spine, Cleveland Clinic, https://my.clevelandclinic.org/health/arti
cles/22278-cervical-spine [https://perma.cc/6CLS-L2KQ].

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he described the Accident. When Darden’s counsel pointed out
that Sun had claimed in his deposition that the voicemail did not
describe the Accident or his injury, he admitted, “Yeah. I did not
discuss the detail of the [Accident].” Sun also claimed that the
Director called him a couple of days later at work to discuss the
Accident. Sun then admitted that if an employee came to him with
an injury, he would “report [it] right away” but explained he did
not report the Accident to Darden because he already had surgery
scheduled for his shoulder the following month, “so [he] wasn’t
too worried about it.” Darden’s counsel asked Sun, “So [you’ve]
got a surgery coming right around the corner and you make the
decision, ‘Ah, I’m not going to report it as work-related’; is that
correct?” Sun replied, “Correct.” Sun also admitted he filed the
claim with the Commission for the Accident after becoming aware
that his claim in Colorado for the previous injury was denied.

¶9 Sun then called the Director to testify. She testified she was
not aware Sun had injured himself at work in July 2020 until she
received a notice that he had filed his claim with the Commission.
The Director testified that Sun “did not” leave her a voicemail
about the Accident and that Sun’s claim that she called him a
couple of days after the Accident to ask about the Accident was
“not accurate.” The Director stated that the only claim Sun
reported to her was in relation to the alleged injury to his left
shoulder that occurred when he was working for Darden in
Colorado. The Director confirmed, “I was never made aware of
any slip and fall in Utah. Had I been made aware, I can promise
you, in all of my years and experience, I would have instantly
reported it into the system.” She testified there was no
investigation into the Accident because Sun never reported it. The
Director testified she was aware of Sun’s August 2020 surgery for
his shoulder and that she made arrangements “to provide
coverage to the restaurant . . . for the time that he had requested
off” to have surgery. But she reiterated that those arrangements
were “not related to any claim or any injury related to work.” The
Director stated that as a manager, Sun could have filed his own
claim and had access to a portal with the phone number for
reporting.

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¶10 In its ruling, the ALJ concluded Sun failed to comply with
the Reporting Statute because he did not notify Darden “of his
July 1, 2020, industrial accident within 180 days of the injury date
as required by the statutory provision.” Sun’s claims were
dismissed with prejudice.

¶11 Sun appealed the ALJ’s ruling to the Board. In its review,
the Board noted there is “a material distinction between [Sun’s]
knowledge of his right-shoulder injury and his cervical-spine
injury” and addressed the notice issue as it pertained to each
injury. Concerning the shoulder injury, the Board affirmed the
ALJ’s determination that Sun knew “he should have reported
[his] right-shoulder injury, but elected to delay notice of such
injury for his own reasons” and did not notify Darden until he
filed a claim in April 2021. Concerning the neck injury, the Board
found dispositive the fact that “Sun’s cervical-spine complaints
were first addressed by [Sun’s surgeon] in December 2020 and
first causally connected to [the Accident] by [his orthopedic spine
surgeon] in February 2021.”

¶12 The Board then interpreted the notice requirement of the
Reporting Statute in light of Interstate Electric Co. v. Industrial
Commission, 591 P.2d 436 (Utah 1979). In particular, the Board
quoted an observation from Arthur Larson’s treatise, The Law of
Workmen’s Compensation, included at the end of Interstate’s eight-
paragraph opinion, that “the great majority of the courts have
been sufficiently impressed with the acute unfairness of a literal
application of [their reporting statutes for work-related injuries]
to read in an implied condition suspending the running of the
statute until by reasonable care and diligence it is discoverable
and apparent that a compensable injury has been sustained.” Id.
at 438 (cleaned up). The Board then looked to whether Sun
“purposely chose not to report” his shoulder and neck injuries or
“whether he did not have sufficient knowledge of the injuries
until his treating physician attributed them to his work activities.”
Again, turning to Interstate, the Board engaged in a prejudice
analysis and concluded that Sun’s failure to report his neck injury
did not prejudice Darden, so “strict application of the 180-day

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deadline for reporting [Sun’s] cervical-spine injury is not
appropriate for the cervical-spine claim.” The Board remanded
the matter to the ALJ for further proceedings regarding Sun’s neck
claim.

¶13 Because the neck claim involved “a medical dispute
between physicians regarding medical causation, date of medical
stability[,] and necessary medical care,” the ALJ referred the
matter to a medical panel for evaluation. Over Darden’s objection,
the ALJ accepted the medical panel’s conclusion that the Accident
was “the cause of [Sun’s] neck and upper extremity radiculopathy
and pain” and ultimately ordered Darden to pay temporary total
disability compensation to Sun of $76,050, as well as necessary
and ongoing medical care for his neck condition.

¶14 Sun appealed the ALJ’s ruling to the Board yet again,
challenging the scope of the award for his neck injury and the
dismissal of his shoulder claims. On review, the Board affirmed
the ALJ’s decision. The Board reiterated its determination that
Sun timely notified Darden of his neck injury in April 2021, dating
the 180-day period from when his “cervical-spine complaints
were first addressed by Sun’s surgeon in December 2020 and first
causally connected to [the Accident] by [his orthopedic spine
surgeon] in February 2021.”

ISSUES AND STANDARD OF REVIEW

¶15 Darden seeks judicial review of the Board’s award, arguing
that the Board erred in determining that Sun had timely reported
his neck injury. 2 In a cross-petition, Sun seeks judicial review of
the Board’s dismissal of his right-shoulder injury as untimely.

2. Darden also argues that the Board abused its discretion in
refusing to exclude the medical panel’s report as being
unsupported by the medical evidence and that the Board erred in
finding medical causation. Because we conclude that Sun’s claims
are time-barred, we need not reach either of these challenges.

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Both of these issues involve a challenge to the Board’s
interpretation of the Reporting Statute. “We review the [Board’s]
interpretation of statutory provisions for correctness.” Utah Am.
Energy Inc. v. Labor Comm’n, 2021 UT App 33, ¶ 12, 484 P.3d 1195.

ANALYSIS

¶16 The ALJ ruled that Sun did not meet the statutory notice
requirement for his injuries because he did not report the
Accident to Darden within 180 days of when it occurred. The
Board, however, bifurcated the notice issue, analyzing it
separately for each injury and determined that the relevant factor
was not the date Sun sustained the injuries but the date he became
aware of them and their causal connection to the Accident.
Darden contends this is an incorrect interpretation of the
Reporting Statute.3 We agree.

¶17 “When interpreting a statute, our primary objective is to
ascertain the intent of the legislature, the best evidence of which
is the plain language of the statute itself.” In re J.E., 2023 UT App
3, ¶ 32, 524 P.3d 1009 (cleaned up). “We read the plain language
of the statute as a whole” and “follow the cardinal rule that the
general purpose, intent or purport of the whole act shall control,
and that all the parts be interpreted as subsidiary and harmonious
to its manifest object.” Miller v. Weaver, 2003 UT 12, ¶ 17, 66 P.3d
592 (cleaned up).

3. Sun asserts that we lack jurisdiction over this issue because
Darden did not sufficiently raise it below. We can easily dispatch
this argument, however, because not only did Darden raise the
filing deadline in its Answer, the ALJ issued a ruling on this
specific issue and Sun appealed that ruling to the Board, which
also issued a decision. Thus, the “preservation requirement is
satisfied [because] the issue was raised at the administrative level
so that the agency . . . had the opportunity to rule on it.” Palmer v.
St. George City Council, 2018 UT App 94, ¶ 12 n.4, 427 P.3d 423.

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¶18 The Reporting Statute states, in relevant part, as follows:

An employee sustaining an injury arising out of and
in the course of employment shall provide
notification to the employee’s employer promptly of
the injury. . . .

. . . An employee is barred for any claim of benefits
arising from an injury if the employee fails to notify
within . . . 180 days of the day on which the injury
occurs.

Utah Code § 34A-2-407(2)–(3) (emphasis added). As noted, the
Board looked to Interstate Electric Co. v. Industrial Commission, 591
P.2d 436 (Utah 1979), to guide its analysis of the Reporting Statute
and relied upon the court’s favorable citation of the observation
from Arthur Larson’s The Law of Workmen’s Compensation that
courts “read in an implied condition suspending the running of
the statute until by reasonable care and diligence it is discoverable
and apparent that a compensable injury has been sustained.” Id.
at 438.

¶19 The statute in effect at the time of Interstate, however, was
significantly different from the Reporting Statute. 4 First, the prior
statute required injured employees to notify their employers of an
injury within forty-eight hours or suffer a fifteen-percent
reduction in their compensation. See Utah Code § 35-1-99 (1953).
The statute’s tight timeframe was designed “to afford an

4. The legislature repealed the prior statute in 1990, see Act of Apr.
23, 1990, ch. 69, § 13, 1990 Utah Laws 247, 254, and enacted a new
statute that set the reporting requirement at 180 days, see Utah
Code § 35-1-97(2) (1990) (“Any employee who fails to notify his
employer or the commission within 180 days of an injury is barred
for any claim of benefits arising from the injury.”). The statute was
later renumbered as Utah Code section 35A-3-407. See Act of July
1, 1997, ch. 240, § 150, 1996 Utah Laws 893, 896.

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opportunity to the employer to make an investigation into the
facts and to provide medical treatment.” Id. Second, the statute
considered prejudice to the employer because it allowed
employees to challenge the fifteen-percent reduction if “the
employer was not, in fact, . . . misled or prejudiced” by the delay.
Id. In Interstate, our supreme court needed to determine whether
the employer was prejudiced by the employee’s one-day delay in
reporting his work injury because the plain language of the statute
in effect in 1979 allowed employees to raise a defense to the
required fifteen percent reduction in compensation based on lack
of such prejudice. Interstate, 591 P.2d at 437–38. And it is
understandable that a forty-eight-hour deadline may have given
courts pause about “the acute unfairness of a literal application”
of the statute’s language, see id. at 437–38, particularly where the
reporting delay in Interstate was only one day. 5 But the statute at
issue in this case no longer includes any of the provisions that the
court was analyzing in Interstate. See Utah Code § 34A-2-407(2)(a).
The Board failed to consider these distinctions in relying on
Interstate in its analysis.

¶20 “If the legislature deletes specific words or phrases from a
statute, it is presumed that the legislature intended that the
deleted portion should no longer be the law.” Smith v. Volkswagen
SouthTowne, Inc., 2024 UT App 33, ¶ 12, 547 P.3d 198 (cleaned up),
petition for cert. filed, May 15, 2024 (No. 20240517). That is precisely
what happened here. In 1990, the legislature changed the scheme
for the timely reporting of work injuries. Instead of a very short
amount of time to report an injury—forty-eight hours—the
legislature extended the time to 180 days, or nearly six months.
The legislature deleted both the option for reduced compensation
if the employee failed to meet that deadline and the

5. In Interstate, the employee reported his injury after “three
days.” Interstate Elec. Co. v. Industrial Comm’n, 591 P.2d 436, 437
(Utah 1979). It is unclear if the employee reported the injury on
that third day or on the day following the three days. We presume
the delay in reporting was one day, but acknowledge it could
have been two days.

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corresponding ability to nonetheless receive full benefits if the
delay in reporting did not prejudice the employer. It is thus clear
that the statute at issue in Interstate is no longer the law.

¶21 Moreover, “[o]ur legislature knows how to [include
exceptions to a filing deadline] when that is its intent; indeed, it
has done so . . . in other sections of the Utah [Labor] Code.” See
Utah Assoc. Mun. Power Sys. v. 3 Dimensional Contractors Inc., 2024
UT App 35, ¶ 51, 547 P.3d 829. The Utah Occupational Disease
Act, which provides compensation for “any disease or illness that
arises out of and in the course of employment and is medically
caused or aggravated by that employment,” expressly includes
such an exception. See Utah Code § 34A-3-103. As explained by
this court in Stevenson v. Labor Commission, 2021 UT App 101, 499
P.3d 911, “employees who have sustained an occupational disease
. . . arising out of and in the course of employment must promptly
notify their employer . . . within 180 days after the cause of action
arises” or they are “barred from a claim of benefits.” Id. ¶ 13
(cleaned up). The statute defines when the “cause of action arises”
to be “when the employee first: (i) suffers disability from the
occupational disease; and (ii) knows or in the exercise of reasonable
diligence should have known, that the occupational disease is caused
by employment.” Id. (emphasis added) (cleaned up). Had Sun
filed a claim under this statute, then his awareness of his neck
injury and its cause would have mattered, as the Board believed
it did. But the statute at issue here—the Reporting Statute in the
Workers’ Compensation Act—has no such language about tolling
the reporting deadline until discovery of the injury. Thus, the 180-
day period cannot run from the date an employee becomes aware
of the injury but must run from “the day on which the injury
occurs.” See Utah Code § 34A-2-407(3)(b) (emphasis added).

¶22 Only a few cases address the Reporting Statute’s 180-day
deadline, and they uniformly uphold the straightforward 180-day
filing requirement. See, e.g., Green v. Labor Comm’n, 2013 UT App
165, ¶ 8, 306 P.3d 824 (holding that the employee’s claim for
workers’ compensation benefits was barred based on “the
absence of affirmative evidence establishing that the accident was

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reported”); Leavitt v. Labor Comm’n, 2008 UT App 349U, para. 3
(holding that the employee’s claim for workers’ compensation
benefits was barred because she did not report her injury to her
employer “within 180 days of the incident”); Owen v. Labor
Comm’n, 2006 UT App 479U, para. 3 (per curiam) (holding that
“although [the employee] had reported pain, she did not specify
that the pain was related to her work” so her formal claim, filed
over a year after her accident, was time-barred).

¶23 Having concluded that the Reporting Statute required Sun
to report his injury within 180 days of the Accident, we examine
whether Sun did, in fact, timely report the Accident. At the
hearing before the ALJ, Sun testified that he both left a voicemail
message for the Director about the Accident and spoke with her
about it several days later when she called him. The Director
testified that she did not receive a voicemail from Sun or talk with
him about the Accident. After hearing this conflicting testimony
from Sun and the Director, the ALJ found the Director’s
“testimony credible that [Sun] did not report the fall that occurred
on July 1, 2020.” In its decision on Sun’s motion for review of the
ALJ’s decision, the Board adopted the ALJ’s findings of fact. The
Board then concluded that “the preponderance of the evidence
does not show that [Sun] reported the injuries from the July 2020
accident until he filed his application for hearing” with the
Commission on April 27, 2021, some 300 days later. Sun does not
challenge either the ALJ’s credibility findings or the Board’s
conclusion that Sun did not report the Accident within 180 days
of the day it occurred. Nor does he identify any other evidence he
presented to the Commission that demonstrated he notified
Darden of the Accident within 180 days of when it occurred. 6

6. At the hearing, Darden’s primary opposition to Sun’s claim for
benefits was that the Accident did not occur. Sun testified that he
reported the Accident to the Director (via voicemail the night of
the Accident and in a telephone conversation a few days later),
presumably in an effort to demonstrate that the Accident did, in
fact, occur. Sun therefore had both the opportunity and the
(continued…)

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Thus, the Board’s determination that Sun did not report the
Accident within 180 days stands unrebutted.

¶24 In sum, it was inappropriate for the Board to map its
interpretation of the Reporting Statute to a case that turned on
such an outdated and dissimilar statute. In doing so, the Board
erroneously “read in an implied condition suspending the
running of the statute until by reasonable care and diligence it is
discoverable and apparent that a compensable injury has been
sustained.” Interstate Electric Co. v. Industrial Comm’n, 591 P.2d 436,
438 (Utah 1979). We are reluctant “to infer language and meaning
that does not appear on the face of the statute or when doing so
would be inconsistent with the legislature’s statutory scheme.”
Williamson v. Farrell, 2024 UT App 111, ¶ 32 (cleaned up). Instead,
we reiterate that “the best evidence of the legislature’s intent is the
plain language of the statute itself.” Marion Energy, Inc. v. KFJ
Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (cleaned up). Here,
the Reporting Statute was amended to remove the language relied
on by the Board. The Reporting Statute plainly states that a claim
is barred if the injury is not reported within 180 days of the
accident, provides no mention of prejudice to the employer as an
exception to this rule, and does not toll the deadline for any
reason. And the Board’s conclusion that Sun did not report his
injury within 180 days stands unchallenged. Therefore, we set
aside the Board’s determination that Sun’s claim for benefits
related to his neck injury was not time-barred, and we decline to
disturb the Board’s determination that Sun’s claim for benefits
related to his shoulder injury was time-barred.

CONCLUSION

¶25 The Board correctly interpreted the relevant statutory
provision as it related to the shoulder injury but not as it related
to the neck injury. Accordingly, we decline to disturb the Board’s

motivation to present at the hearing any evidence showing that
he reported the injury.

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dismissal of Sun’s claims for benefits related to his shoulder
injury, and we set aside the Board’s award based on Sun’s claims
for benefits related to his neck injury.

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