Frito-Lay v. Labor Commission

2009 UT 71
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Frito-Lay and Transcontinental 	No. 20080818
Insurance Company,
Petitioners,
v.
Utah Labor Commission and 	F I L E D
Amy C. Clausing,
Respondents. 	November 3, 2009
---
Original Proceeding in the Utah Court of Appeals
Attorneys: 	Theodore E. Kanell, John H. Romney, Salt Lake City,
for petitioners
Alan L. Hennebold, Salt Lake City, for respondent
Utah Labor Commission
Gary E. Atkin, K. Dawn Atkin, Salt Lake City, for
respondent Amy C. Clausing
---
On Certiorari to the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	This appeal arises from Amy Clausing’s claim against
Frito-Lay and its insurance carrier, Transcontinental Insurance
Co. (collectively, “Frito-Lay”), for temporary disability
compensation under the Utah Workers’ Compensation Act. 	It raises
three issues that we must resolve: 	(1) whether the Utah Rules of
Civil Procedure, and specifically rule 60, are applicable to
administrative proceedings; (2) whether the Utah Labor Commission
has statutory authority similar to the authority a district court
would have under rule 60 to modify a former order; and (3)

1 Utah Code Ann. § 63G-4-301(1)(a) (2008).
No. 20080818 	2
whether the court of appeals erred in addressing Frito-Lay’s
arguments under rule 60(a) or the discovery rule.
BACKGROUND
¶2 	Clausing worked for Frito-Lay as a route sales
representative. 	On March 18, 1999, she was injured when a pallet
of Frito-Lay products fell on her while she was restocking a
retail store display.
¶3 	In 2001 and 2003, she filed applications for workers’
compensation benefits relating to injuries she incurred in 1999.
The 2001 application resulted in a settlement agreement and
subsequent award of permanent partial disability payments and
medical expenses.
¶4 	After finalizing the settlement, Clausing suffered a
neck injury and a stroke, which she contended were caused by the
1999 accident. 	She also alleged continuing knee, elbow, and
lower back pain. 	Thus, on July 17, 2003, she again applied for
compensation for injuries relating to the 1999 accident. 	For
purposes of adjudicating the 2003 application, the parties
stipulated to facts regarding Clausing’s salary and work history
between 1999 and 2004.
¶5 	On September 23, 2005, an Administrative Law Judge
(“ALJ”) for the Utah Labor Commission (“Commission”) entered an
order that included, in part, temporary total disability (“TTD”)
benefits. 	The order specified a weekly TTD benefit of $487 for
the period between March 18, 1999, and June 10, 2004. 	Although
the order provided for offsets of amounts previously paid to
Clausing and incorporated the stipulation of facts, it did not
specifically acknowledge the parties’ stipulation that Clausing
had worked during substantial portions of the period encompassed
by the order. 	Nor did it specify offsets for time worked.
¶6 	Neither party appealed the order before the thirty-day
deadline provided by the Utah Administrative Procedures Act
(“UAPA”). 1 	But on December 1, 2005, Clausing demanded payment
for the entire period covered by the September 23 order, an award
totaling $123,061.20. 	On December 6, 2005, Frito-Lay responded,
stating that “no outstanding compensation” remained to be paid.
Frito-Lay later recalculated the amount and determined it owed

2 Utah Code Ann. § 63G-4-301(1)(a).
3 	No. 20080818
$4,451.18, which breaks down to $487 per week for 9.14 weeks--the
number of weeks Clausing did not work between March 18, 1999, and
June 10, 2004.
¶7 	On December 20, 2005, Clausing filed an Abstract of
Award, which set forth her belief that she had been awarded
$183,561.85, representing 190.88 weeks at $487, plus interest.
The next day, Frito-Lay filed a motion under rule 60(b) of the
Utah Rules of Civil Procedure seeking relief due to surprise,
mistake, and excusable neglect. 	Frito-Lay argued that it was
entitled to relief because both parties were mistaken as to the
effect of the September 23 order. 	Frito-Lay claimed that, in
light of the stipulation, neither party anticipated the order
would award payment of $487 per week for all weeks between March
18, 1999, and June 10, 2004. 	Further, Frito-Lay argued that,
until Clausing filed her abstract of award on December 20, 2005,
it did not realize that Clausing interpreted the order to require
such payment.
¶8 	In opposition to the rule 60(b) motion, Clausing argued
that rule 60(a) would have been a more appropriate rule under
which Frito-Lay could have sought relief because the order did
not reflect the conclusion the parties understood the ALJ to have
reached at the hearing.
¶9 	On March 17, 2006, the ALJ issued an amended order,
stating that the 60(b) motion was denied because (1) there were
insufficient grounds to support it; (2) under UAPA, it was an
untimely appeal of the September 23 order; and (3) UAPA does not
grant the Commission authority to review the 60(b) motion.
¶10 	Frito-Lay sought further administrative review, and the
Commission’s Appeals Board (“Appeals Board”) also dismissed
Frito-Lay’s rule 60(b) motion. 	The Appeals Board determined that
rule 60(b) is not applicable to administrative proceedings before
the Commission. 	Rather, the sole avenue for relief is found in
UAPA, which specifies that review of ALJ decisions must be sought
within thirty days. 2
¶11 	Frito-Lay appealed the Appeals Board’s decision to the
Utah Court of Appeals. 	A panel majority of the court of appeals
determined that there was nothing in the applicable statutes

3 Frito-Lay v. Labor Comm’n, 2008 UT App 314, ¶ 12, 193 P.3d
665.
4 Renumbered as Utah Code section 63G-4-302 (2008).
On October 23, 2006, when the Appeals Board issued its
decision in this matter, UAPA was codified as Title 63 Chapter
46b in the Utah Code. 	However, the 2008 legislature recodified
UAPA as Title 63G, Chapter 4, effective May 2008. 	Because this
recodification does not alter the provisions of UAPA that are
material to this case, we cite to the current UAPA provisions.
5 Frito-Lay, 2008 UT App 314, ¶ 11.
6 Id. ¶ 12.
7 Id. ¶¶ 13-14.
8 Id. ¶¶ 21-23.
9 Id. ¶ 23.
No. 20080818 	4
“that would prohibit modification of an order under rule 60.” 3
Rather, UAPA “merely grants administrative agencies the power to
have internal appellate review of ALJ orders” within thirty days,
and section 63-46b-13 4 establishes “a method of review” of an
order in the absence of an established appeals process. 5 	But
because a rule 60 motion is distinct from a motion for review,
the panel majority found “nothing in [UAPA] that would prohibit”
granting relief under rule 60. 6 	The panel majority also
determined that “rule 60(a) may also be applicable” to the extent
any omission in the September 23 order could be viewed as a
clerical error. 7 	Finally, the panel majority addressed Frito-
Lay’s alternative argument, apparently raised for the first time
on appeal, that the discovery rule should have been applied to
toll the time for seeking review under Utah Code sections 63G-4-
301 or -302. 8 	Reasoning that Frito-Lay could not, through
reasonable efforts, have discovered that Clausing would demand
awards for days that she admitted she was able to or did actually
work, the panel majority determined that the discovery rule
tolled the filing deadline, making Frito-Lay’s rule 60(b) motion
a timely request for administrative review. 9
¶12 	Judge Thorne dissented. 	He first contended that the
panel majority not only improperly considered rule 60(a) where
Frito-Lay had not raised it as a distinct issue on appeal, but
also that the majority erred in its determination that the

10 Id. ¶ 30 (Thorne, J., dissenting).
11 Id. ¶ 31 (Thorne, J., dissenting).
12 Id. ¶ 36 (Thorne, J., dissenting).
13 Id. ¶ 34 (Thorne, J., dissenting).
14 Id. ¶ 40 (Thorne, J., dissenting).
15 Bear River Mut. Ins. Co. v. Wall, 1999 UT 33, ¶ 4, 978
P.2d 460.
5 	No. 20080818
September 23 order’s omission constituted a clerical error.
Then, as to the panel majority’s rule 60(b) analysis, Judge
Thorne noted that “UAPA has expressly incorporated the Utah Rules
of Civil Procedure in just two areas, discovery and default.” 10
And he recognized that “in [all] other areas including the
substantive review of agency orders, UAPA [establishes]
procedures that are unique to the agency context.” 11
Accordingly, Judge Thorne agreed with the Appeals Board’s
determination that Frito-Lay had waived its available remedies
under UAPA by failing to appeal within the thirty-day deadline
set by UAPA. 12 	He also found the cases cited by the panel
majority distinguishable because they applied to “situations
where newly discovered facts warrant a change in an existing
order.” 13 	Finally, he disagreed that application of the
discovery rule would have resulted in a timely challenge to the
September 23 order. 14
¶13 	We granted certiorari to determine whether the court of
appeals erred in holding rule 60 of the Utah Rules of Civil
Procedure applicable to the Commission’s adjudicative proceedings
or in addressing Frito-Lay’s arguments under rule 60(a) and the
discovery rule.
¶14 	We have jurisdiction to review the court of appeals’
decision pursuant to Utah Code section 78A-3-102(3)(a) (2008).
STANDARD OF REVIEW
¶15 	On certiorari, we review the decision of the court of
appeals for correctness and give no deference to its legal
conclusions. 15

16 Frito-Lay v. Labor Comm’n, 2008 UT App 314, ¶ 10, 193 P.3d
665.
17 Id. ¶¶ 16, 20, 23.
18 Utah Const. art. VIII, § 4.
No. 20080818 	6
ANALYSIS
¶16 	The parties and the court of appeals agree that the
legislature has not incorporated rule 60 of the Utah Rules of
Civil Procedure into either UAPA or the statutes governing the
Commission’s administrative adjudications. 	Despite the
legislature’s decision not to incorporate rule 60, the panel
majority of the court of appeals held that rule 60 is applicable
in workers’ compensation proceedings conducted by the
Commission 16 and that the Appeals Board should have applied rule
60(a), rule 60(b), and/or the discovery rule to modify the
September 23 order. 17 	We address each of these holdings in turn
and conclude that (1) the Utah Rules of Civil Procedure are
inapplicable to administrative proceedings unless the legislature
has specifically incorporated them, in whole or in part, by
statute; (2) although rule 60 is inapplicable in this case, the
Commission has statutory authority that grants it the same
substantive authority that state and local courts are granted
under rule 60; and (3) the issue of whether the court of appeals
erred in addressing rule 60(a) or the discovery rule is moot in
light of our determination that the Commission’s statutory
authority is sufficient to address the merits of Frito-Lay’s
motion. 	Accordingly, we reverse the court of appeals’ decision
and remand this case to the Appeals Board to reconsider Frito-
Lay’s motion under the Commission’s statutory grant of authority.
I. 	THE UTAH RULES OF CIVIL PROCEDURE ARE INAPPLICABLE TO
ADMINISTRATIVE PROCEEDINGS UNLESS EXPRESSLY INCORPORATED BY
STATUTE
¶17 	The Utah Constitution empowers and requires this court
to “adopt rules of procedure and evidence to be used in the
courts of the state and . . . by rule manage the appellate
process.” 18 	Accordingly, we have promulgated the Utah Rules of
Civil Procedure, among other rules, which are “the rules for the
government of the courts adjudicating formal contest between

19 Entre Nous Club v. Toronto, 287 P.2d 670, 672 (Utah 1955).
20 Utah Code Ann. § 63G-4-102(1)(a) (2008) (stating that
UAPA governs state agency action).
21 See, e.g., Utah Code Ann. § 34A-2-420 (2005) (setting
procedures specific to Labor Commission adjudications); see also
Utah Chiropractic Ass’n v. Equitable Life Assurance Soc’y, 579
P.2d 1327, 1328 (Utah 1978) (recognizing that the Insurance Code
governs procedures for administrative adjudications).
22 See State v. Briggs, 2008 UT 83, ¶ 14, 199 P.3d 935
(stating that the legislature may delegate to an agency the power
to make administrative procedural rules).
23 Pilcher v. Utah Dep’t of Soc. Servs., 663 P.2d 450, 453
(Utah 1983).
7 	No. 20080818
adverse parties.” 19 	The scope of our rules is limited by the
scope of the authority granted to this court by the Utah
Constitution. 	Thus, we can apply these rules only to “the courts
of the state.” 	We are powerless to impose our court rules on
proceedings outside of state and local courts.
¶18 	Administrative adjudications are such proceedings.
Administrative agencies are established and governed by the Utah
Legislature, which has enacted UAPA to govern the procedures of
administrative adjudications. 20 	In addition, the legislature has
prescribed by statute specific procedures applicable only to
certain agencies. 21 	And the legislature has given some agencies
discretion to promulgate supplemental rules governing their own
adjudications. 22 	In the event that the legislature and the
administrative agency are both silent as to the procedure that
governs a particular situation, we still may not impose our rules
to fill the gap. 	Our limited jurisdiction prevents us from doing
so. 	Thus, our rules can only apply to administrative
adjudications if “the governing statute or regulations so
provide.” 23
¶19 	We recognize that some of our broad past statements may
have caused some confusion regarding this issue. 	For example, in
Utah County v. Alexanderson, we stated that “[r]ule 81(d) [of the
Utah Rules of Civil Procedure] applies the Rules of Civil

24 2005 UT 67, ¶ 7 n.2, 123 P.3d 414 (applying the rule 73(h)
time limit for an appeal to an appeal from an administrative
decision).
25 Utah R. Civ. P. 81(d) (emphasis added).
26 See, e.g., Utah Chiropractic Ass’n, 579 P.2d at 1329
(applying the Utah Rules of Civil Procedure to determine the time
limit for appealing from a final administrative determination).
27 Frito-Lay v. Labor Comm’n, 2008 UT App 314, ¶ 10, 193 P.3d
665.
28 Id. ¶ 12.
No. 20080818 	8
Procedure to administrative proceedings.” 24 	We take this
opportunity to clarify this and related statements. 	Rule 81(d)
provides only that the Utah Rules of Civil Procedure “shall apply
to the practice and procedure in appealing from or obtaining a
review of any order, ruling or other action of an administrative
board or agency.” 25 	This rule does nothing more than reiterate
the constitutional mandate that our court establish the rules of
procedure for courts to follow in reviewing such administrative
actions. 26 	Once a litigant has exhausted her administrative
remedies and seeks review in a state court, then the constitution
empowers us to determine the procedures by which that review is
governed. 	Therefore, despite the broad language in some of our
past opinions, rule 81(d) does not apply the Utah Rules of Civil
Procedure to administrative proceedings; rather, it simply makes
clear that state courts reviewing administrative cases are
governed by our rules of procedure.
¶20 	Despite the limited reach of our rules of civil
procedure, the court of appeals determined that “rule 60
provides the Board with the power to correct the amount of
Clausing’s award.” 27 	The court of appeals reached this
conclusion after determining that nothing in UAPA or the Workers’
Compensation Act “prohibit[s] modification of an order under rule
60.” 28 	Accordingly, the court of appeals’ analysis reflects the
incorrect assumption that the Utah Rules of Civil Procedure apply
to administrative proceedings unless the rules are in conflict
with a procedure established by statute.
¶21 	Frito-Lay, in its argument to affirm the court of
appeals’ opinion, essentially abandons the argument that the
Appeals Board should have applied rule 60. 	Rather, Frito-Lay

29 Rule 60 is a rule of equity and provides district courts
with the authority to relieve a party from a final judgment if,
for example, the judgment incorporated a clerical error, or was
issued as a result of inadvertence, mistake, or excusable
neglect. 	Utah R. Civ. P. 60; see also Menzies v. Galetka, 2006
UT 81, ¶ 54, 150 P.3d 480 (“It is well established that 60(b)
motions should be liberally granted because of the equitable
nature of the rule. 	Therefore, a district court should exercise
its discretion in favor of granting relief so that controversies
can be decided on the merits rather than on technicalities.”
(citation omitted)).
9 	No. 20080818
contends that we should affirm the court of appeals’ opinion on
other grounds--specifically, on the ground that the Commission
had statutory authority to correct its own mistakes after the
appeal deadline had passed. 	While noting that “[n]othing in Rule
60, as it applies in this case, is inconsistent with the UAPA,
the Utah Code, or established Labor Commission regulations,”
Frito-Lay contends that, regardless, the Workers’ Compensation
Act grants the Commission “much broader” discretion to correct
mistakes than rule 60 gives district courts. 	We agree.
II. 	THE LABOR COMMISSION HAS STATUTORY AUTHORITY TO CORRECT
ERRORS IN AN ORDER AFTER THE TIME TO FILE AN APPEAL HAS EXPIRED
¶22 	The Appeals Board determined that it lacked authority
to modify an order after the deadline to appeal the order had
passed. 	It stated, “UAPA, the Labor Commission Act, and the Utah
Workers’ Compensation Act . . . do not authorize Frito-Lay’s
attempt to use Rule 60(b), U.R.C.P., as a method of obtain[ing]
relief from [the September 23 order].” 	Although the Appeals
Board was correct that rule 60 is not a source for this
authority, we disagree with the assertion that the Labor
Commission lacked authority to grant Frito-Lay the relief it
sought. 	The Workers’ Compensation Act expressly gives the Labor
Commission broad authority to review Commission orders, and this
authority is not only equivalent to but, indeed, exceeds the
authority that district courts have through rule 60 of the Utah
Rules of Civil Procedure. 29
¶23 	As the Appeals Board correctly recognized, section
63G-4-301 of UAPA requires a party seeking review of an ALJ’s
decision to file a written request for review within thirty days

30 Utah Code Ann. § 63G-4-301(1)(a) (2008) (“If a statute or
the agency’s rules permit parties to any adjudicative proceeding
to seek review of an order by the agency or by a superior agency,
the aggrieved party may file a written request for review within
30 days after the issuance of the order with the person or entity
designated for that purpose by the statute or rule.”).
31 Id. §§ 34A-1-101 to -1-409 (2005 & Supp. 2008).
32 Id. §§ 34A-2-101 to -2-205.
33 Id. § 34A-1-303(4)(a).
34 Id. § 34A-1-303(1).
35 Id. § 34A-2-801(3)(a).
36 Id. § 34A-2-420(1) (2005).
No. 20080818 	10
in accordance with applicable statutes or agency rules. 30 	The
statutes applicable to Commission decisions are the Labor
Commission Act 31 and the Workers’ Compensation Act. 32 	The Labor
Commission Act provides that decisions issued by Commission ALJs
are subject to review by either the Commissioner or the Appeals
Board. 33 	It also provides that an ALJ’s decision is final
“unless a further appeal is initiated: 	(a) under this title; and
(b) in accordance with the rules of the commission governing the
review.” 34 	The Workers’ Compensation Act further mandates that
such appeals must be filed within thirty days of the issuance of
the decision. 35 	Because, according to the Appeals Board, this
statutory scheme constitutes “a comprehensive and integrated
system,” the Commission lacks authority to review a case
according to the type of procedures found in rule 60.
¶24 	But the Appeals Board failed to consider that it has
been granted continuing jurisdiction in section 34A-2-420 of the
Workers’ Compensation Act. 	In that section, the legislature made
“[t]he powers and jurisdiction of the commission over each case
. . . continuing” and indicated that “[a]fter notice and hearing,
the Division of Adjudication, commissioner, or Appeals Board
. . . may from time to time modify or change a former finding or
order of the commission.” 36 	Under the Commission’s
interpretation, this power to modify or change an order is
limited to the thirty-day period for appeals of right. 	But this
interpretation renders the “from time to time” language
meaningless. 	Given our obligation to read this provision in

37 Carter v. Univ. of Utah Med. Ctr., 2006 UT 78, ¶ 9, 150
P.3d 467 (noting that if multiple statutes “purport to cover the
same subject” the court “avoid[s] interpretations that will
render portions of a statute superfluous or inoperative”
(internal quotation marks omitted)).
38 290 P. 776, 782 (Utah 1930) (overruled on other grounds by
Moore v. Utah Technical College, 727 P.2d 634 (Utah 1986)).
39 Id. (internal quotation marks omitted).
40 770 P.2d 125, 130 (Utah 1989).
11 	No. 20080818
accordance with other provisions that set procedures for the
review of a Commission order and to reach an interpretation that
gives meaning to all the provisions, 37 we determine that the
“from time to time” language confers upon the Commission
jurisdiction beyond that to review an appeal of right. 	Further,
we find nothing within the statutory scheme that excludes the
review of a decision for a clerical or other error from the
authority to review decisions “from time to time.”
¶25 	Indeed, we have previously determined that the grant of
continuing jurisdiction encompasses the authority that district
courts have under rule 60. 	In Carter v. Industrial Commission,
we stated that the Industrial Commission, the predecessor to the
Commission, has “wide discretion in the exercise of its
continuing jurisdiction conferred upon it,” which was “no doubt
given for the express purpose suggested, . . . to avoid the
making of excessive or inadequate awards . . . if such should
occur, and the evidence warrants it . . . adequate power to
correct the same.” 38 	Further, we held, “the power of the
[Commission] as to its continuing jurisdiction is not limited to
consideration of changes in physical condition of workmen, but is
extended to [the] right to rescind, alter, or amend orders,
decisions, or awards on good cause appearing therefor.” 39
¶26 	Nearly sixty years later, in Thomas A. Paulsen Co. v.
Industrial Commission, we reiterated our holding in Carter. 	We
determined that the Commission’s continuing jurisdiction provided
the Commission authority “comparable to that provided to trial
courts by [rule] 60(a).” 40 	In Thomas A. Paulsen Co., an ALJ
failed to explicitly order the employer to reimburse the Workers’

41 Id. at 126.
42 Id. at 130.
43 Id.
44 Armstrong Rubber Co. v. Bastian, 657 P.2d 1346, 1348 (Utah
1983) (“If the nature of the motion can be ascertained from the
substance of the instrument, . . . an improper caption is not
fatal to that motion.”).
No. 20080818 	12
Compensation Fund. 41 	The ALJ had made this decision at a
hearing. 	Neither party requested review of the decision within
the designated review period. 	Then, eight months later the
Workers’ Compensation Fund requested that the ALJ amend the order
in accordance with the reimbursement determination made at the
hearing. 	We held that it was within the ALJ’s authority to do
so. 42 	In so holding, we noted that such authority was consistent
with the legislative instruction that workers’ compensation
proceedings were “not to be burdened with technicalities” but
were “to be conducted . . . to protect the substantial rights of
the parties.” 43
¶27 	The case now before us is markedly similar to Thomas A.
Paulsen Co. 	In the case at hand, the ALJ issued an order that
both Frito-Lay and Clausing agree did not reflect the ALJ’s
determination at the hearing. 	Further, the order itself, by
incorporating a stipulation detailing the weeks Clausing worked
during the relevant period, indicates an intent to limit the TTD
award to compensate Clausing only for time she did not work.
Finally, as did the Workers’ Compensation Fund in Thomas A.
Paulsen Co., Frito-Lay requested that the ALJ clarify the order
after the deadline for review had passed. 	The only notable
difference between Thomas A. Paulsen Co. and the present case is
that Frito-Lay sought relief under rule 60(b), rather than simply
requesting that the ALJ clarify his order. 	This difference is
irrelevant, however, because courts are to look at the substance
of a motion, not merely its title, to determine its validity. 44
¶28 	Thus, as in Carter and Thomas A. Paulsen Co., we again
hold that the Labor Commission has broad authority to review
Commission orders and that this authority, in the circumstances
considered here, exceeds the authority that district courts have
under rule 60 of the Utah Rules of Civil Procedure. 	This holding
is consistent with the legislative intent not to burden with

45 Thomas A. Paulsen Co., 770 P.2d at 130.
46 See Carter v. Indus. Comm’n, 290 P. 776, 781-83 (Utah
1930).
47 Utah Code Ann. § 63G-4-401(1) to (2) (providing that an
aggrieved party “may obtain judicial review of final agency
action . . . only after exhausting all administrative remedies
available”); see also Nebeker v. Utah State Tax Comm’n, 2001 UT
74, ¶ 14, 34 P.3d 180 (stating that “parties must exhaust
applicable administrative remedies as a prerequisite to seeking
judicial review” (internal quotation marks omitted)).
48 See Maverik Country Stores, Inc. v. Indus. Comm’n, 860
P.2d 944, 947–48 (Utah Ct. App. 1993).
49 See Angel Investors, L.L.C. v. Garrity, 2009 UT 40, ¶ 38,
216 P.3d 944 (explaining when a reviewing court may “affirm a
judgment on an unpreserved alternate ground” (emphasis added));
see also Hous. Auth. v. Snyder, 2002 UT 28, ¶ 11, 44 P.3d 724 (
(continued...)
13 	No. 20080818
technicalities the Commission’s ability to protect the
substantive rights of its parties 45 and to empower the Commission
to prevent inadequate or excessive awards. 46
III. 	OUR HOLDING REGARDING THE LABOR COMMISSION’S CONTINUING
JURISDICTION MAKES MOOT THE ISSUE OF WHETHER THE COURT OF APPEALS
ERRED IN ADDRESSING RULE 60(a) AND THE DISCOVERY RULE
¶29 	The Commission claims that Frito-Lay’s rule 60(a) and
discovery rule arguments were not exhausted through the
administrative process, and, accordingly, the court of appeals
erred in addressing them. 	Although the Commission frames its
argument in terms of exhaustion, it is more properly understood
as an issue preservation argument.
¶30 	The exhaustion of administrative remedies requirement
mandates that the litigant follow all of the outlined
administrative review procedures prior to a state court having
subject matter jurisdiction to hear the case. 47 	Satisfaction of
the exhaustion requirement does not depend upon the issues a
litigant has raised below but rather the administrative remedies
the litigant has pursued. 48 	There are times when a reviewing
court may exercise its discretion in addressing an unpreserved
issue, 49 but a reviewing court lacks jurisdiction to review an

49 (...continued)
noting that state courts may review a subject matter jurisdiction
issue even though it was never raised in the administrative
proceedings).
50 Hous. Auth., 2002 UT 28, ¶ 11 (“‘[P]arties must exhaust
applicable administrative remedies as a prerequisite to seeking
judicial review . . .’ [and] [w]here this precondition to suit is
not satisfied, courts lack subject matter jurisdiction.” (quoting
Nebeker, 2001 UT 74, ¶ 14)).
But where an exception to the exhaustion requirement is met,
a state court does have jurisdiction to review an unexhausted
case. 	Salt Lake City Mission v. Salt Lake City, 2008 UT 31,
¶ 11, 184 P.3d 599 (“We have previously noted a number of
exceptions to the exhaustion requirement in unusual
circumstances. 	Exhaustion is not required where (1) there is
irreparable injury; (2) there is a likelihood of oppression or
injustice; (3) exhaustion would serve no purpose, or is futile;
or (4) an administrative agency or officer has acted outside of
the scope of its defined, statutory authority.” (citations and
internal quotation marks omitted)). 	These exceptions are
distinct from the exceptions to the preservation requirement and
further demonstrate the distinction between exhaustion and
preservation. 	Angel Investors, 2009 UT 40, ¶ 38 (“We may affirm
a judgment on an unpreserved alternate ground ‘where the
alternate ground is apparent on the record’ and when ‘the facts
as found by the trial court are sufficient to sustain the
decision of the trial court on the alternate ground.’” (quoting
Bailey v. Bayles, 2002 UT 58, ¶ 20, 52 P.3d 1158)).
No. 20080818 	14
unexhausted case. 50
¶31 	Because Frito-Lay first sought review by the ALJ of the
September 23 order and then filed for review by the Appeals
Board, it exhausted its administrative remedies before seeking
judicial review. 	Indeed, the Commission does not argue that the
court of appeals lacked jurisdiction over the entire case;
instead, it argues that Frito-Lay failed to raise specific issues
in the administrative review, and, thereby, lost the right to
have the court of appeals review those issues. 	This is a classic
preservation argument.
¶32 	The preservation doctrine provides that “issues not
raised in proceedings before administrative agencies are not
subject to judicial review except in exceptional

51 Sullivan v. Utah Bd. of Oil, Gas & Mining, 2008 UT 44,
¶ 14, 189 P.3d 63 (quoting Brown & Root Indus. Serv. v. Indus.
Comm’n, 947 P.2d 671, 677 (Utah 1997)).
52 See ABCO Enters. v. Utah State Tax Comm’n, 2009 UT 36,
¶¶ 9-11, 211 P.3d 382 (explaining the three situations, two of
which are administrative, in which the preservation doctrine
applies).
53 Richards v. Baum, 914 P.2d 719, 720 (Utah 1996) (internal
quotation marks omitted).
54 See Myers v. McDonald, 635 P.2d 84, 86 (Utah 1981)
(indicating that the purpose of the discovery rule is to toll the
statute of limitations).
15 	No. 20080818
circumstances.” 51 	Thus, a litigant may have exhausted her
administrative remedies and properly brought an appeal to a state
court but still be limited by the preservation doctrine regarding
which issues she could raise before the state court. 52
¶33 	In this case, we need no longer determine whether
Frito-Lay’s arguments under rule 60(a) or the discovery rule were
preserved. 	These issues have become moot. 	“An appeal is moot if
during the pendency of the appeal circumstances change so that
the controversy is eliminated, thereby rendering the relief
requested impossible or of no legal effect.” 53
¶34 	Frito-Lay has argued that the discovery rule should be
applied to toll the filing deadline, making Frito-Lay’s motion
timely. 54 	But in light of our determination that the Appeals
Board has continuing jurisdiction, there is no deadline to apply
to Frito-Lay’s motion. 	Accordingly, the issue has become moot.
¶35 	Further, as we have explained that the Commission’s
jurisdiction to review Frito-Lay’s motion does not come from rule
60, but rather from the Workers’ Compensation Act, we need not
parse whether Frito-Lay raised both 60(a) and 60(b) claims or
merely a 60(b) claim. 	Rather, the Appeals Board has the
discretion under its grant of continuing jurisdiction to treat
Frito-Lay’s motion as a motion for agency review and determine
from the facts alleged whether Frito-Lay seeks relief from a
clerical error. 	The title of Frito-Lay’s motion is irrelevant,
only the substance matters--that is, the facts alleged and the
relief sought.

No. 20080818 	16
¶36 	Accordingly, we do not determine the question of
whether the court of appeals erred in addressing Frito-Lay’s
arguments under rule 60(a) and the discovery rule because we
determine that the Appeals Board has sufficient authority under
the Workers’ Compensation Act to address the claims that Frito-
Lay raised in its Motion for Relief From Judgment.
CONCLUSION
¶37 	Because the legislature has not incorporated rule 60
into Labor Commission adjudications, we determine that rule 60 is
inapplicable to those proceedings. 	But we determine that the
Commission has authority under the grant of continuing
jurisdiction in the Workers’ Compensation Act to address claims
that state courts would address under rule 60. 	In light of this
authority, we reverse the court of appeals’ decision and we
remand this case to the Commission’s Appeals Board to determine,
in its discretion, whether to consider the substance of Frito-
Lay’s Motion for Relief From Judgment.
---
¶38 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.