Merrill v. Labor Commission

2009 UT 26
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Nathan H. Merrill, 	No. 20070584
Petitioner,
v.
Utah Labor Commission; Vermax
of Florida, Inc., dba Dakota
Cabinets; Workers Compensation 	F I L E D
Fund; and Wausau Business Insurance,
Respondents. 	April 24, 2009
---
Original proceeding in the Utah Court of Appeals
Attorneys: 	Phillip B. Shell, Salt Lake City, for petitioner
Sharon J. Eblen, Salt Lake City, for respondents
Alan Hennebold, Salt Lake City, for Labor Commission
James R. Black, Thomas R. Lee, Eugene C. Miller,
Salt Lake City, amicus Workers Compensation Fund
---
On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 	We granted certiorari to consider whether Utah Code
section 34A-2-413(5) violates the Equal Protection Clauses of the
Utah and United States Constitutions by discriminating on the
basis of age. 	Section 34A-2-413(5) provides an offset reducing
the amount of benefits for individuals receiving both workers’
compensation benefits and social security retirement benefits.
Specifically, when an individual qualifies for both social
security retirement benefits and workers’ compensation benefits,
and when the individual has received 312 weeks of workers’
compensation, workers’ compensation benefits are reduced by fifty
percent of the amount the individual is receiving in social
security retirement benefits. 	We hold that this offset violates
Utah’s uniform operation of the law guarantee and reverse and
remand.

1 This section was enacted in 1988 and not amended until
2005. 	The 2005 amendments made stylistic changes that do not
affect our analysis; so, we cite to the 2005 version. 	The
statute was subsequently amended in 2008. 	Utah Code Ann. § 34A-
2-413(5) (Supp. 2008). 	This amended version of the statute is
substantially the same as the version at issue in this case, with
the exception of a cost-of-living increase which has no impact on
our analysis. 	See id. § 34A-2-413(5)(b)(i). 	Thus the analysis
we apply to the 2005 version is also applicable to the 2008
version.
No. 20070584 	2
BACKGROUND
¶2 	The opinion of the court of appeals contains a thorough
factual history, which we will not repeat here. 	See Merrill v.
Labor Comm’n, 2007 UT App 214, ¶¶ 2-6, 163 P.3d 741. 	Instead, we
recount only those facts relevant to the appeal. 	Nathan Merrill
was injured while working for Vermax of Florida, Inc., dba Dakota
Cabinets (Dakota). 	The Utah Labor Commission (the Commission)
determined that Merrill had become permanently and totally
disabled and was unable to find other employment. 	The Commission
originally ordered that Merrill receive workers’ compensation
payments of $395 per week, plus other statutorily prescribed
payments to be determined. 	Dakota subsequently challenged the
$395 award, arguing that it needed to be offset pursuant to
subsection (5) of Utah Code section 34A-2-413, which provides:
Notwithstanding the minimum rate established
in Subsection (2), the compensation payable
by the employer, its insurance carrier, or
the Employers’ Reinsurance Fund, after an
employee has received compensation from the
employer or the employer’s insurance carrier
for any combination of disabilities amounting
to 312 weeks of compensation at the
applicable total disability compensation
rate, shall be reduced, to the extent
allowable by law, by the dollar amount of 50%
of the Social Security retirement benefits
received by the employee during the same
period.
Utah Code Ann. § 34A-2-413(5) (2005). 1
¶3 	The appellant argues that this subsection violates both
the uniform operation of laws provision of article I, section 24
of the Utah Constitution and the Equal Protection Clause of the

3 	No. 20070584
Fourteenth Amendment to the United States Constitution. 	He
asserts that the offset treats him differently than others
similarly situated without a rational basis. 	The Commission
determined that it did not have authority to consider the
constitutionality of the statute and ordered an offset in the
payments. 	Mr. Merrill appealed to the Utah Court of Appeals.
The court of appeals held:
In enacting section 413(5), the Utah
Legislature may have legitimately concluded
that the statute would assure employees
adequate recovery for wages lost due to
disability but also avoid duplication in
benefits by reducing workers’ compensation
awards once workers also begin receiving
social security retirement payments.
Additionally, the legislature may have
intended to reduce the cost of workers’
compensation insurance premiums for
employers. 	Thus, we can conceive of at least
two legitimate legislative purposes behind
the challenged legislation.
Merrill, 2007 UT App 214, ¶ 18.
¶4 	The court of appeals further held that “the legislature
chose a reasonable means to achieve its objective” and that the
statute survived rational basis review under the Utah
Constitution. 	Id. ¶¶ 19-20.
STANDARD OF REVIEW
¶5 	On certiorari, we review the decision of the Utah Court
of Appeals for correctness. 	Thomas v. Color Country Mgmt., 2004
UT 12, ¶ 9, 84 P.3d 1201. 	The constitutionality of a statute is
a question of law that we also review for correctness. 	Ryan v.
Gold Cross Servs., Inc., 903 P.2d 423, 424 (Utah 1995); see also
Amax Magnesium Corp. v. Utah State Tax Comm’n, 796 P.2d 1256,
1258 (Utah 1990) (“[T]his court shows no deference to the Tax
Commission’s conclusion as to the legality or constitutionality
of tax statutes because they are conclusions of law.”). 	“It is
important to note at the outset that our uniform operation of the
laws analysis is guided by the well-settled proposition that all
statutes are presumed to be constitutional and the party
challenging a statute bears the burden of proving its
invalidity.” 	Blue Cross & Blue Shield of Utah v. State, 779 P.2d
634, 637 (Utah 1989); see also Ryan, 903 P.2d at 424.

No. 20070584 	4
ANALYSIS
I. 	WE CONSIDER THIS EQUAL PROTECTION CHALLENGE
UNDER THE FRAMEWORK OF UTAH LAW
¶6 	Mr. Merrill has challenged the constitutionality of the
statute under both the Utah Constitution and the United States
Constitution. 	The uniform operation of laws provision of the
Utah Constitution provides, “All laws of a general nature shall
have uniform operation.” 	Utah Const. art. I, § 24. 	Similarly,
the Fourteenth Amendment of the United States Constitution
provides for equal protection of the laws. 	U.S. Const. amend.
XIV, § 1. 	The purpose of the uniform operation of laws provision
is to prevent “classifying persons in such a manner that those
who are similarly situated with respect to the purpose of a law
are treated differently by that law, to the detriment of some of
those so classified.” 	Blue Cross & Blue Shield of Utah v. State,
779 P.2d 634, 637 (Utah 1989). 	“The essence of the uniform
operation of laws principle is that ‘legislative classifications
resulting in differing treatment for different persons must be
based on actual differences that are reasonably related to the
legitimate purposes of the legislation.’” 	Ryan v. Gold Cross
Servs., Inc., 903 P.2d 423, 426 (Utah 1995) (quoting Mountain
Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 887 (Utah
1988)). 	“[P]ersons similarly situated should be treated
similarly, and persons in different circumstances should not be
treated as if their circumstances were the same.” 	Malan v.
Lewis, 693 P.2d 661, 669 (Utah 1984).
¶7 	The uniform operation of laws provision and the Equal
Protection clause address similar concerns in determining the
constitutionality of a statute. 	Both have as their basic concept
“the settled concern of the law that the legislature be
restrained from the fundamentally unfair practice of creating
classifications that result in different treatment being given
[to] persons who are, in fact, similarly situated.” 	Mountain
Fuel Supply Co., 752 P.2d at 888. 	“The two provisions are
substantially parallel.” 	State v. Merrill, 2005 UT 34, ¶ 31, 114
P.3d 585. 	Accordingly, becasue our “review [of] legislative
classifications under article I, section 24 [of the Utah
Constitution] . . . is at least as exacting and, in some
circumstances, more rigorous than the standard applied under the
[Fourteenth Amendment of the] federal constitution,” Mountain
Fuel Supply Co., 752 P.2d at 889, we evaluate the
constitutionality of the statute under Utah law.

5 	No. 20070584
II. 	THE STATUTE IS UNCONSTITUTIONAL
¶8 	The United States Supreme Court has held that age is
not a suspect classification, and statutes that create
classifications based on age are analyzed under a rational basis
review. 	Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313–14
(1976). 	We likewise subject classifications based on age to
rational basis review. 	Purdie v. Univ. of Utah, 584 P.2d 831,
832 (Utah 1978).
¶9 	We undertake a three-part inquiry to determine if a
statute violates the uniform operation of laws. 	“In scrutinizing
a legislative measure under article I, § 24, we must determine
whether the classification is reasonable, whether the objectives
of the legislative action are legitimate, and whether there is a
reasonable relationship between the classification and the
legislative purposes.” 	Blue Cross & Blue Shield of Utah v.
State, 779 P.2d 634, 637 (Utah 1989).
A. 	It Is Reasonable to Classify Based on Age
but It Is Not Reasonable to Classify Injured Workers Based
on Receipt of Social Security Retirement Benefits
¶10 	The first step in the test is to determine if the
classification made in the statute is reasonable. 	In deciding if
a classification is reasonable, we have considered: (1) if there
is a greater burden on one class as opposed to another without a
reason; (2) if the statute results in unfair discrimination;
(3) if the statute creates a classification that is arbitrary or
unreasonable; or (4) if the statute singles out similarly
situated people or groups without justification. 	See Weber Basin
Home Builders Ass’n v. Roy City, 487 P.2d 866, 868 (Utah 1971)
(questioning whether an ordinance “results in an unjust
discrimination by imposing a greater burden of the cost of city
government on one class of persons . . . without any proper
basis”); Blue Cross & Blue Shield, 779 P.2d at 640 (asking
whether “the classifications drawn by the statutes create a
discrimination ‘with no rational basis’”) (quoting Mountain Fuel
Supply Co., 752 P.2d at 890); State v. Merrill, 2005 UT 34, ¶ 41,
114 P.3d 585 (explaining the standard for determining the
constitutionality of a classification is whether it is “arbitrary
or unreasonable”); Anderson v. Provo City Corp., 2005 UT 5, ¶ 18,
108 P.3d 701 (“The provision forbids singling out one person or
group of persons from among the larger class [of those similarly
situated] on the basis of a tenuous justification that has little
or no merit.”) (internal quotation marks omitted) (alteration in
original). 	The most important consideration in this case is

No. 20070584 	6
whether the statute singles out similarly situated people or
groups without justification.
¶11 	In differentiating between injured workers who qualify
for social security retirement benefits and those who do not,
Utah Code section 34A-2-413(5) creates two classifications, one
implicitly based on age and the other based on the receipt of
benefits. 	The statute implicitly relies on age by using the
benchmark of social security retirement benefits. 	Individuals
under the age of sixty-five are not eligible for social security
retirement benefits. 	The statute also classifies based on
eligibility for benefits by reducing workers’ compensation
benefits if workers are receiving social security retirement
benefits.
¶12 	As the court of appeals pointed out, the United States
Supreme Court has held that age is a permissible method of
classifying individuals where a rational basis exists. 	See
Merrill v. Labor Comm’n, 2007 UT App 214, ¶ 12, 163 P.3d 741
(citing Gregory v. Ashcroft, 501 U.S. 452, 473 (1991) (requiring
judicial officers to retire at age seventy is not
unconstitutional); Vance v. Bradley, 440 U.S. 93, 108 (1979)
(requiring foreign service officers to retire at age sixty is not
unconstitutional); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 316
(1976) (requiring police officers to retire at age fifty is not
unconstitutional)).
¶13 	The classification at issue in this case, however, is
more complicated than simply whether an individual is over the
age of sixty-five. 	The classification also depends on whether an
individual is eligible for social security retirement.
Eligibility for social security retirement is based on several
factors, including the number of years an individual has worked
and contributed to the social security fund. 	Individuals who are
over the age of sixty-five and not receiving social security
retirement benefits are treated differently than individuals over
the age of sixty-five and receiving social security benefits.
¶14 	In State Tax Commission v. Department of Finance, this
court evaluated the constitutionality of a provision of the Utah
Workers’ Compensation Act that taxed the State Insurance Fund
more than private insurance carriers or self-insurance. 	576 P.2d
1297, 1298 (Utah 1978). 	We held that this tax created an
impermissible classification by singling out one member of the
class without justification: 	“The State Insurance Fund has been
singled out from among a larger class of insurers to pay a tax
imposed upon no one else which must be considered to be
arbitrarily and constitutionally prohibited.” 	Id. 	Also, in

7 	No. 20070584
Malan v. Lewis, we held the Automobile Guest Statute
unconstitutional because it singled out a class of individuals
without a rational basis. 	693 P.2d 661, 674–75 (Utah 1984). 	We
stated,
Nor can justification be found for the
statute on the theory that it reduces
insurance rates. 	That may be true, but there
is no valid justification for achieving that
objective by singling out nonpaying
automobile guests. 	It would be just as
logical to select out all victims of
automobile accidents caused by Ford
automobiles. 	That also would reduce
insurance premiums, but there is no rational
basis for discriminating against the
disadvantaged class in either case.
Id.
¶15 	It is not reasonable for a state legislature to
classify individuals based on the receipt of federal social
security retirement benefits because this classification singles
out certain people without a rational basis. 	In Reesor v. Mont.
State Fund, 103 P.3d 1019, 1022 (Mont. 2004), the Montana Supreme
Court declared, in evaluating a statute similar to the one at
issue in this case,
[B]oth classes have suffered work-related
injuries, are unable to return to their time
of injury jobs, have permanent physical
impairment ratings and must rely on [the
workers’ compensation act] as their exclusive
remedy under [the] law. . . . 	Furthermore,
chronological age and the corresponding
eligibility for social security retirement
benefits is unrelated to a person’s ability
to engage in meaningful employment.
Id.
¶16 	Presumably, the legislature was attempting to account
for the additional income available to social security retirement
recipients. 	But if income is the criterion, there is no rational
basis to rely only on income from a single source.
¶17 	The statute fails based on its classification scheme
alone. 	However, even assuming the classification was 	justified,

No. 20070584 	8
we still find the classification unconstitutional because it is
not reasonably related to a legitimate legislative objective.
B. 	The Legislature Has Two Legitimate Objectives
¶18 	The next step in the analysis is to determine if the
legislature has a legitimate objective in creating the
classification. 	Gallivan v. Walker, 2002 UT 89, ¶ 43, 54 P.3d
1069; Blue Cross & Blue Shield, 779 P.2d at 640. 	“We do not,
however, ‘accept any conceivable reason for the legislation
. . . . 	Rather, we judge such enactments on the basis of
reasonable or actual legislative purposes.’” 	Blue Cross & Blue
Shield, 779 P.2d at 637 (quoting Malan, 693 P.2d at 671 n.14).
¶19 	The court of appeals identified two possible objectives
the legislature could have had in creating the offset: 	to
prevent the duplication of disability benefits and to reduce the
cost of workers’ compensation for employers. 	Merrill, 2007 UT
App 214, ¶ 18. 	Our review of the legislative history indicates a
third purpose, to restore the solvency of the workers’
compensation fund. 	See House Debate on H.B. 218, 1988 Utah Leg.,
Gen. Sess. (Feb. 16, 1988)(statement of Rep. Sousen)(noting that
the reason for the bill is that the Second Injury Fund is a trust
fund very much needed and $70 million in deficit).
¶20 	Preventing the duplication of benefits and restoring
the solvency of the workers’ compensation fund are legitimate
objectives. 	Reducing employers’ liability for workers’
compensation payments is not a legitimate objective because the
Workers’ Compensation Act has already limited the liability of
employers for injuries employees receive while on the job to
statutorily-defined recoveries. 	It is not a legitimate objective
of the legislature to further reduce employer liability based on
payment of funds an employee would be entitled to regardless of
eligibility for workers’ compensation; nor is it legitimate to
take into account the money the employee has contributed to
social security retirement.
¶21 	Nonetheless, because the legislature had two legitimate
objectives in creating the offset, we evaluate whether there is a
reasonable relationship between the classifications and the
objectives.
C. 	There Is No Reasonable Relationship Between The
Classifications and The Objectives
¶22 	In the last step of the three-part inquiry, we
determine whether the legislature’s classification is reasonably
related to its legitimate objectives. 	Gallivan, 2002 UT 89, ¶ 43

9 	No. 20070584
(inquiring “whether the . . . requirement is reasonably necessary
to further the legislative purpose”); Blue Cross & Blue Shield,
779 P.2d at 641 (“The third and most critical question is whether
the legislature chose a permissible means to achieve its
legitimate ends.”).
¶23 	Although creating a solvent insurance fund and
preventing the duplication of disability benefits are legitimate
objectives, we do not believe that reducing the workers’
compensation benefits of individuals age sixty-five and older who
qualify for social security retirement benefits reasonably
achieves those objectives. 	The purposes of workers’ compensation
and social security retirement benefits are not the same, and
neither can legitimately serve as a substitute for the other.
Because workers’ compensation benefits and social security
retirement benefits are not duplicative, offsetting workers’
compensation benefits against social security retirement benefits
is not a rational means to prevent the duplication of benefits or
to achieve a solvent workers’ compensation fund.
1. 	The Purpose of Workers’ Compensation Is to Provide an
Exclusive Remedy for Injuries
¶24 	The Workers’ Compensation Act was enacted to assure the
injured employee and his family “an income during the period of
his total disability as well as compensation for any resulting
permanent disability, to eliminate the expense, delay, and
uncertainty of the employee having to prove the employer’s
negligence, and to place the burden of industrial injuries on
industry.” 	State Tax Comm’n, 576 P.2d at 1298. 	Utah adopted
workers’ compensation as a tort liability reform measure. 	Utah
Code Ann. § 34A-2-105(1) (2005 & Supp. 2008); see also Golden v.
Westark Cmty. Coll., 969 S.W.2d 154, 158 (Ark. 1998) (explaining
“workers’ compensation benefits are a substitute for access to
the courts for redress for torts and are not a welfare benefit
for wage loss” and “[w]orkers’ compensation benefits are paid
from insurance provided by employers in exchange for the
employee’s forbearance from suing the employer in tort” (internal
quotation marks and citations omitted); West Virginia v.
Richardson, 482 S.E.2d 162, 166 (W. Va. 1996) (“Permanent total
disability awarded under workers’ compensation is part of a
comprehensive plan designed to rectify the results of an injury
in the workplace. 	The payments to the claimants and other
benefits are in lieu of such elements of damage in the common law
tort system as lost wages, lost earning capacity, reimbursement
of past and future medical expenses, past and present pain and
suffering, emotional distress, and other factors.”).

No. 20070584 	10
¶25 	In exchange for their right to sue, injured workers
receive compensation for damages incurred by an on-the-job injury
including compensation for the injury itself; medical, nurse, and
hospital services; and medicines. 	Utah Code Ann. § 34A-2-401
(2005). 	The workers’ compensation system in Utah does not
provide a measure to opt out, unless employers fail to pay to the
workers’ compensation fund, in which case the employee may bring
a civil action. 	Id. § 34A-2-105 (2005 & Supp. 2008); id. 34A-2-
207 (2005). 	The Workers’ Compensation Act is the sole remedy for
injured employees. 	Id. 	As such, it is much more than a wage-
replacement system.
2. 	The Purpose of Social Security Retirement Benefits Is to
Serve as a Pension for Individuals Reaching the Age of Sixty-Five
¶26 	The purpose of social security retirement benefits is
entirely different from the workers’ compensation scheme.
“‘Social security retirement benefits are provided to persons
over age sixty-five regardless of injury . . . . 	These benefits
are not disability benefits, but are old-age entitlements serving
the same function as pension payments.’” 	Golden, 969 S.W.2d at
158 (quoting Indus. Claim appeals Office v. Romero, 912 P.2d 62,
67-68 (Colo. 1996)).
¶27 	Social security retirement benefits allow participants
to receive income after age sixty-five if they have contributed
adequately to the fund. 	See Reesor, 103 P.3d at 1023 (explaining
that social security benefits “provide the recipient with
supplemental income after he contributes to the program
throughout his working life” (emphasis omitted)); West Virginia
v. Richardson, 482 S.E.2d at 166 (“[T]he benefits are . . .
additional compensation paid by insurance as a result of having
worked some period of time at some average taxable salary, except
as the payments reflect a return of the recipient’s wage
contributions to the system.”).
3. 	Social Security Retirement Benefits and Workers’ Compensation
Disability Payments Are Not Duplicative and Are Not Wage-Loss
Replacements
¶28 	The court of appeals found that it was reasonable for
the legislature to draft a provision offsetting workers’
compensation by social security retirement because the two
systems provided duplicate benefits and because both social
security retirement and workers’ compensation were income-loss
substitutes. 	It relied on Richardson v. Belcher, 404 U.S. 78,
82-83 (1971), where the United States Supreme Court held it was
constitutional to offset the receipt of social security

11 	No. 20070584
disability benefits from workers’ compensation benefits because
both had the same purpose of compensating for disability.
However, Richardson is inapposite because workers’ compensation
benefits and social security retirement benefits are not both
disability benefits. 	The court of appeals also cited Larson’s
Workers Compensation for the proposition that workers’
compensation and social security retirement are both wage loss
replacement income and should be offset against each other. 	9
Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law
§ 157.04 (2008). 	We disagree.
¶29 	We hold that social security retirement benefits and
workers’ compensation benefits are not duplicative. 	Neither
social security retirement benefits nor workers’ compensation are
solely wage-replacement measures; each serve additional purposes.
Furthermore, retirement benefits and disability benefits utilize
entirely different means to accomplish those purposes.
¶30 	First, “the two programs . . . compute benefits on
entirely different bases and compensate for entirely different
eventualities . . . .” 	West Virginia v. Richardson, 482 S.E.2d
at 168.
[S]ocial security retirement benefits and
social security disability benefits are two
distinct programs and cannot offset one
another due to the fact that both programs
are based on completely different concepts.
We see no reason why a forty-year-old injured
worker should receive full [permanent partial
disability] benefits pursuant to [statute],
and a sixty-five-year-old worker with an
identical injury should receive only an
impairment award due to the fact he has
reached social security retirement age.
There is no rational basis to deny a class of
injured workers a category of benefits based
upon their age.
Reesor, 103 P.3d at 1024 (emphasis added) (citation omitted).
¶31 	Second, social security retirement benefits are not
paid in connection with an injury or disability, but are paid
after an individual has contributed to the fund. 	See Reesor, 103
P.3d at 1023 (“While workers’ compensation and social security
retirement may be similar in that both are social programs,
social security retirement benefits, unlike workers’
compensation, provide the recipient with supplemental income

No. 20070584 	12
after he contributes to the program throughout his working
life.”); West Virginia v. Richardson, 482 S.E.2d at 166 (“While
old age social security may well provide some level of income
while one who has been injured at work is not working, it is paid
as a result of work history and the attainment of the age
required age,[sic] not by reason of any injury.”) 	Thus, as
another court put it, the “triggering event” of “reaching the
retirement age specified by the federal statute” after one has
“work[ed] the requisite number of quarters” is “in direct
contrast to workers compensation benefits which are available
only if a worker is injured while in the course and scope of
employment and experiences wage loss as a result of such injury.”
Reesor, 103 P.3d at 1023.
¶32 	Third, the Senior Citizen’s Freedom to Work Act, 42
U.S.C. § 402 (2000), has allowed individuals over the age of
sixty-five to receive social security benefits and continue to
work, thus invalidating the rationale that social security
retirement benefits are a wage replacement. 	The effect of this
Act in the context of reducing workers’ compensation benefits has
been noted as such:
The dissent urges that there was a clear
purpose to this legislation: to prevent
double payment to an employee out of two
different government programs which are
designed to replace a loss of wages. 	The
problem with this analysis is that social
security retirement benefits are not wage
loss benefits. 	There is no requirement that
to be entitled to social security benefits a
person must stop working. 	In 2000, the
federal government enacted the Senior
Citizen’s Freedom to Work Act (42 U.S.C. 402)
which eliminated the earnings limit for
workers over the age of 65. 	Thus, there is
no longer a reduction in social security
retirement benefits due to wages regardless
of the amount of wages earned by individuals
age 65 and older.
Reesor, 103 P.3d at 1024; see also Golden, 969 S.W.2d at 158
(“[B]ecause a worker age 65 or older can supplement his or her
social security retirement benefits by income from gainful
employment, social security benefits have evolved into a benefit
more associated with advanced years than a replacement for wage
loss.”).

13 	No. 20070584
¶33 	Fourth, the public policy in the Age Discrimination in
Employment Act, 29 U.S.C. § 623(a)(1) (2006), further supports
the proposition that social security retirement benefits are not
wage loss benefits and are not duplicative of workers’
compensation benefits. 	See Romero, 902 P.2d at 903. 	“Among
ADEA’s substantive provisions is one that prohibits an employer
from discriminating against any employee ‘with respect to his [or
her] compensation, terms, conditions, or privileges of
employment, because of such individual’s age.’” 	Id. (quoting 29
U.S.C. § 623(a)(1) (1988)) (alteration in original). 	This
provision makes it improper for “a private employer or the state
itself (with respect to its employees) to compel its older
employees to substitute retirement benefits for disability
benefits.” 	Id. 	Although “[w]e do not determine that the
disability payments at issue are governed by the ADEA, . . . .
We consider . . . the important public policy [inherent therein]
. . . to assess[] the rationality or the arbitrariness of the
classifications created . . . . [a]nd, that public policy
supports our conclusion that [the statute] is constitutionally
arbitrary.” 	Id. at 904 (citation omitted).
¶34 	Finally, we agree with the Supreme Court of Appeals of
West Virginia that
the total denial of benefits based on the
assumption that one eligible to receive old
age social security benefits is fully
compensated for his injury by some level of
workers’ compensation benefits, reduced by a
portion of social security benefits, raises a
genuine issue as to whether the workers’
compensation scheme is an adequate substitute
remedy for that which might be available in
the tort system for such an injury, thus
implicating the validity of the system as a
substitute for access to the courts.
West Virginia v. Richardson, 482 S.E.2d at 168.
¶35 	We acknowledge that other jurisdictions have come to
the opposite conclusion. 	See Merrill, 2007 UT App 214, ¶¶ 15–16,
(citing In re Tobin, 675 N.E.2d 781, 783 (Mass. 1997); Vogel v.
Wells Fargo Guard Servs., 937 S.W.2d 856 (Tenn. 1996); Harris v.
Dept. of Labor & Indus., 843 P.2d 1056 (Wash. 1993); Brown v.
Goodyear Tire & Rubber Co., 599 P.2d 1031, 1036 (Kan. Ct. App.
1979)). 	However, all of these jurisdictions considered workers’
compensation and social security retirement benefits as wage-loss
replacement income. 	We conclude that to the contrary, social

No. 20070584 	14
security retirement benefits and workers’ compensation are not
simply wage-loss replacement benefits, but serve other, important
purposes. 	Therefore, it is not rational to offset them against
each other.
4. 	It Is Not Rational to Offset Workers’ Compensation Disability
Payments by Fifty-Percent of Social Security Retirement Benefits
¶36 	In this case, the legislature has singled out injured
individuals who have contributed to the economy by working the
required number of years to qualify for social security
retirement benefits, and punished them by reducing their workers’
compensation benefits. 	This is not a rational response to the
legislature’s concerns about maintaining the solvency of the
workers’ compensation fund or preventing employees from receiving
duplicate benefits. 	We agree that
economic viability of the workers’
compensation program and eradication of
duplicate benefits are worthy and lofty
goals, but we fail to see how workers’
compensation benefits paid for loss of the
ability to earn the same wages and a
retirement benefit under social security are
duplicative in any respect. 	The economic
objective behind [the statute] to save money
may be reasonable but the means for achieving
that particular end are not, and, hence, the
statute fails to withstand constitutional
scrutiny.
Golden, 969 S.W.2d at 159 (citation omitted).
¶37 	We agree with other jurisdictions that have held
similar statutes unconstitutional. 	See West Virginia v.
Richardson, 482 S.E.2d at 171 (“We conclude that the statute is
defective in creating the classification of ‘old age social
security recipient’ and reducing benefits for those persons, that
such classification, as here applied, bears no reasonable
relationship to a proper governmental purpose of avoiding
duplication of benefits, and that it results in all persons
within the class of ‘old age social security recipients’ not
being treated equally.”); Golden, 969 S.W.2d at 158 (“Thus,
withholding workers’ compensation benefits from persons age
sixty-five and older because they presumably receive retirement
benefits is not rationally related to the goal of preventing
duplicate benefits because workers’ compensation benefits do not

15 	No. 20070584
serve the same purpose as retirement benefits.” (quoting Romero,
912 P.2d at 67-68)).
CONCLUSION
¶38 	Utah Code section 34A-2-413(5) violates Utah’s uniform
operation of laws provision by unconstitutionally singling out
and reducing workers’ compensation benefits of injured
individuals over the age of sixty-five who qualify for social
security retirement benefits. 	We declare the offset provision in
the statute unconstitutional and reverse and remand for the court
of appeals to enter an order in accordance with this opinion.
---
¶39 	Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and District Judge Page concur in Chief Justice
Durham’s opinion.
¶40 	Justice Nehring did not participate herein; District
Court Judge Rodney J. Page sat.