Rojas v. Labor Commission

2017 UT App 206

THE UTAH COURT OF APPEALS

JAVIER ROJAS,
Petitioner,
v.
LABOR COMMISSION, FERRARI COLOR,
AND WORKERS’ COMPENSATION FUND,
Respondents.

Opinion
No. 20160644-CA
Filed November 16, 2017

Original Proceeding in this Court

W. Scott Lythgoe and Addison D. Larreau, Attorneys
for Petitioner
Andrea Mitton and Matthew J. Black, Attorneys for
Respondents Ferrari Color and Workers’
Compensation Fund

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. ORME and KATE A. TOOMEY concurred.

HAGEN, Judge:

¶1 Javier Rojas was injured while working as a printing
machine operator for Ferrari Color. Rojas seeks judicial review of
the Utah Labor Commission’s decision that he was not entitled
to a 15% increase in disability compensation because his injury
did not result from a willful safety violation by his employer. We
conclude that Ferrari Color’s conduct does not constitute a
“willful failure” under the Utah Workers’ Compensation Act
and therefore decline to disturb the Commission’s decision.
Rojas v. Labor Commission

BACKGROUND1

¶2 As a printing machine operator, Rojas’s duties required
him to place print media onto the machine’s rollers and ensure
that the media did not become wrinkled during the printing
process. To watch the media as it ran through the printer, Rojas
stood on a box and looked through an open center access panel.

¶3 In January 2013, Rojas saw the media wrinkling and
reached into the printer to flatten it. Before he could remove his
left hand, the industrial printer’s support bar briefly trapped his
hand and a portion of the printer head scraped across it, tearing
Rojas’s skin and causing his hand to bleed. Rojas reported the
injury to the print department manager (the manager), but Rojas
declined medical treatment.

¶4 The next month, Ferrari Color terminated Rojas’s
employment for an unrelated timeclock violation. Following his
termination, Rojas contacted the Utah Occupational Safety and
Health Division (UOSH) and reported that the manager had
removed the printer’s safety sensor. In response, a UOSH
inspector conducted a site inspection in April 2013 and found
that a safety sensor had been bypassed, allowing the printer to
run with the doors open. Under Utah law, an employer may not
lawfully “remove, disable, or bypass safety devices and
safeguards.” Utah Code Ann. § 34A-2-301(1)(d) (LexisNexis
2015). Consequently, Ferrari Color was cited for a serious
violation of safety standards.

¶5 Rojas subsequently filed a hearing application with the
Commission, requesting workers’ compensation benefits along
with a 15% increase in disability compensation for a willful
safety violation. After a hearing, the administrative law judge

1. Our recitation of the facts is based on the Administrative Law
Judge’s findings of fact, which the Commission adopted in its
July 5, 2016 order.

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(the ALJ) awarded Rojas all of the requested benefits, including
the 15% increase.

¶6 Ferrari Color and its insurance carrier, Workers’
Compensation Fund (collectively, Ferrari Color), appealed the
ALJ’s order to the Commission. Among other things, Ferrari
Color asserted that it did not engage in a willful safety violation
that would entitle Rojas to a 15% increase in compensation
under Utah Code section 34A-2-301(2). The Commission
adopted the ALJ’s factual findings but modified the ALJ’s
decision, setting aside the portion of the order awarding Rojas a
15% increase in disability compensation. Rojas petitions for
judicial review of that modification.

ISSUE AND STANDARD OF REVIEW

¶7 Rojas contends that the Commission erred when it
determined that Ferrari Color’s conduct was not willful and thus
did not trigger a 15% increase in disability compensation under
Utah Code section 34A-2-301(2).

¶8 Section 63G-4-403(4) of the Utah Administrative
Procedures Act “authorizes appellate courts to grant relief to a
party substantially prejudiced by an error in the final disposition
of a claim adjudicated by an administrative agency.” Provo City
v. Utah Labor Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242; see also
Utah Code Ann. § 63G-4-403(4) (LexisNexis 2016). Review of the
Commission’s willfulness determination would fall under
section 63G-4-403(4)(d), which authorizes an appellate court to
grant relief where “the agency has erroneously interpreted or
applied the law.” Because this subsection neither expressly states
nor implies a standard of review, “we are free to apply our
traditional approach for selecting an appropriate standard of
review.” See Murray v. Utah Labor Comm’n, 2013 UT 38, ¶¶ 21,
23–24, 308 P.3d 461.

¶9 Determining whether Ferrari Color committed a willful
safety violation involves an application of the law to the facts,

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often referred to as a “mixed question” of law and fact. See id.
¶ 24. Appellate courts apply deferential or nondeferential review
to mixed questions, depending on whether the issue is more fact-
like or more law-like. See id. ¶ 36–37. Here, the determination of
willfulness is more fact-like “[d]ue to the fact-intensive inquiry
involved at the agency level in determining whether it is
appropriate to award benefits, including credibility
determinations that an appellate court is in an inferior position
to review.” JP's Landscaping v. Labor Comm'n, 2017 UT App 59,
¶ 12, 397 P.3d 728 (alteration in original) (citation and internal
quotation marks omitted)); see also Murray, 2013 UT 38, ¶ 21
(citing negligence as a finding that is more fact-like and therefore
entitled to deference). As a result, deference to the Commission’s
ultimate determination is warranted.

¶10 In reviewing mixed findings, however, “we must be
vigilant . . . to ensure that they are based on correct legal
principles.” In re Baby B., 2012 UT 35, ¶ 47, 308 P.3d 382.
Therefore, we “review the legal standard applied to a particular
mixed question for correctness.” Sawyer v. Dep't of Workforce
Servs., 2015 UT 33, ¶ 25, 345 P.3d 1253.

ANALYSIS

¶11 Under the Utah Workers’ Compensation Act, an
employee is entitled to a 15% increase in compensation when the
employee’s “injury is caused by the willful failure of an
employer to comply with: (a) the law; (b) a rule of the
commission; (c) any lawful order of the commission; or (d) the
employer’s own written workplace safety program.” Utah Code
Ann. § 34A-2-301(2) (LexisNexis 2015). Among other things,
Utah Code section 34A-2-301(1)(d) provides that an employer is
not permitted to bypass a safety device or safeguard. “The term
‘willful’ . . . implies something in addition to mere negligence.”
Salas v. Industrial Comm’n, 564 P.2d 1119, 1120 (Utah 1977). Thus,
“negligence alone or even gross negligence is not sufficient to
constitute ‘willful failure.’” Van Waters, 700 P.2d 1096, 1098 (Utah
1985). Gross negligence is defined as “carelessness or

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recklessness to a degree that shows utter indifference to the
consequences that may result.” Blaisdell v. Dentrix Dental Sys.,
Inc., 2012 UT 37, ¶ 14, 284 P.3d 616 (citation and internal
quotation marks omitted). “Willful failure” thus requires more
than “utter indifference” to the risks that the safety violation
poses. See id. (citation and internal quotation marks omitted).

¶12 In Van Waters, the Utah Supreme Court construed the
term “willful failure” in the context of Utah Code section 34A-2-
302(3)(a), which provides for a corresponding decrease in
compensation for an employee’s willful failure to follow safety
guidelines. See 700 P.2d at 1098–99. The court adopted the
following “workable formula” for “distinguishing willful failure
from less culpable conduct”:

[T]he general rule . . . [is] that the deliberate
defiance of a reasonable rule laid down to prevent
serious bodily harm to the employee will usually
be held to constitute wilful misconduct, in the
absence of a showing of . . . specific excuses . . . .

....

If the employee had some plausible purpose to
explain his violation of a rule, the defenses of
violation of safety rules or wilful misconduct are
inapplicable, even though the judgment of the
employee might have been faulty or his conduct
rash . . . .

Id. at 1099 (first omission added) (quoting 1A A. Larson,
Workmen’s Compensation §§ 32.30, 33.40 (1982)).

¶13 The parties agree that the term “willful failure” has the
same meaning in both sections 34A-2-301 and -302. As a result,
although Van Waters involved alleged willful failure on the part
of an employee, it is equally instructive in the context of the
present case involving alleged willful failure on the part of an
employer. See id. 1098–99. But Rojas argues that the Commission

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Rojas v. Labor Commission

misapplied Van Waters’s “workable formula.” Specifically, Rojas
contends that Ferrari Color’s conduct should be considered a
willful failure unless it presents evidence of a plausible purpose
to explain the safety violation. We review the Commission’s
interpretation of the applicable legal standard for correctness. See
Sawyer, 2015 UT 33, ¶ 25.

¶14 Under the Van Waters formula, the Commission must first
determine whether the relevant conduct is in “deliberate
defiance of a reasonable rule laid down to prevent serious bodily
harm.” See 700 P.2d at 1099. Assuming the Commission finds
deliberate defiance of a safety rule, the employer may then
present evidence of a plausible purpose to excuse the violation.
On the other hand, if the Commission determines that the
conduct was not in deliberate defiance of a safety rule, there is
no need for the employer to present evidence of a plausible
purpose to avoid the 15% increase in compensation. See Salt Lake
County v. Labor Comm'n, 2009 UT App 112, ¶ 15, 208 P.3d 1087
(affirming the Commission’s determination that an employee’s
violation of a lifting restriction was not willful without
addressing whether there was a reasonable explanation for the
violation).

¶15 In the present case, Ferrari Color was not required to
present evidence excusing otherwise willful conduct because the
Commission reasonably concluded that Ferrari Color did not
deliberately disable or bypass safeguards on the printing
machine.

¶16 Rojas testified that, on the day of the accident, one of the
printing machine’s vacuums2 was inoperative and that the
manager had to override the safety sensor so that the machine
would continue to function. The Commission determined that
this testimony was rebutted. The manager testified that he did

2. When the vacuum functions properly, it suctions the media in
place as it moves on the conveyor through the printing machine.

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Rojas v. Labor Commission

not remove or override the safety sensor and that he did not
know how to do so as of the date of Rojas’s injury. In addition,
he testified that the vacuum must have been operational that day
because media cannot move on the conveyor without it, and a
malfunction would have necessitated a service call. The
Commission found that Ferrari Color neither requested a service
call for vacuum problems in January or February 2013 nor
recorded any such problems in the maintenance log. Based on
this evidence, the ALJ found “credible [the manager’s] testimony
that he did not override the sensor,” and the Commission later
adopted this finding.

¶17 Rojas and his brother, also a Ferrari Color employee,
further testified that the printer’s access panels were often left
open so that employees could easily see into the machine to
know when media was wrinkling. The manager admitted that he
had seen employees operating the machine without the panel in
place, but the Commission found that there was “no indication
that [the manager] or Ferrari Color deliberately defied
safeguards for the printing machine at the time of Mr. Rojas’s
work injury.”3

¶18 The Commission correctly determined that Ferrari Color
did not willfully or deliberately bypass a safety device or
safeguard on the date of Rojas’s injury. The Commission
credited the manager’s testimony that he had not overridden the
safety sensor at the time of the accident, as Rojas had claimed. In
fact, the Commission found that the manager did not even know
how to override the sensor at that time. While there was
evidence to suggest that the manager had seen employees

3. The manager knew that a service technician had overridden
the sensor sometime after the date of Rojas’s injury and allowed
employees to continue operating the printer with the safety
sensor bypassed and its access panels open. That conduct
resulted in the April 2013 citation, but, as the Commission noted,
“that was months after the work accident in question.”

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operating the machine with the access panels open, Rojas did not
establish that the manager knew, at the time of the accident, that
it was necessary to bypass a safety sensor to operate the machine
in this fashion, or that the manager had ever directed employees
to do so. Accordingly, applying the deferential standard of
review, we hold that the evidence did not support a finding of a
“willful violation,” and the Commission properly set aside the
15% increase in disability compensation.

CONCLUSION

¶19 We conclude that the Commission reasonably determined
that Ferrari Color did not commit a willful safety violation
entitling Rojas to a 15% increase in compensation. We therefore
decline to disturb the Commission’s decision.

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