Massengale v. Labor Commission

2020 UT App 44

THE UTAH COURT OF APPEALS

STEVE MASSENGALE,
Petitioner,
v.
LABOR COMMISSION AND ALLIANT TECHSYSTEMS INC.,
Respondents.

Opinion
No. 20190249-CA
Filed March 26, 2020

Original Proceeding in this Court

Richard R. Burke, Attorney for Petitioner
Jaceson R. Maughan and Christopher C. Hill,
Attorneys for Respondent Labor Commission
Bret A. Gardner and Kristy L. Bertelsen, Attorneys
for Respondent Alliant Techsystems Inc.

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Steve Massengale has petitioned this court for review of
the Labor Commission’s order dismissing his claim for
permanent total disability benefits as untimely. We decline to
disturb the Labor Commission’s order.

BACKGROUND

¶2 Massengale suffered a work-related back injury on June
28, 2002, while working for Alliant Techsystems Inc. (Alliant),
and received workers’ compensation benefits, including
compensation for two surgeries. Over the years, Massengale’s
condition worsened, and on June 26, 2014, he filed an application
Massengale v. Labor Commission

for hearing on a request for surgery and a claim for permanent
total disability benefits. Alliant asked the administrative law
judge (ALJ) to dismiss Massengale’s claim for permanent total
disability benefits because that claim could not be assessed until
he became medically stable after the surgery. Thereafter,
Massengale amended his application for hearing to address only
the surgery claim and a request for add-on attorney fees. A short
time later, Massengale voluntarily withdrew his claim for
permanent total disability benefits.

¶3 On July 8, 2016, more than two years after he filed his
initial application for hearing and more than fourteen years after
his workplace injury, Massengale filed another application for
hearing to adjudicate his permanent total disability claim. An
ALJ dismissed this claim because it was not filed prior to the
expiration of the twelve-year statute of repose applicable to
disability claims in workers’ compensation cases. Massengale
appealed the ALJ’s determination, and the Labor Commission
affirmed the ALJ’s order, explaining that Massengale’s
withdrawal of his permanent total disability claim demonstrated
that he was unable to meet his burden to prove entitlement to
permanent disability benefits within the twelve-year statutory
period. Massengale now requests that we review the Labor
Commission’s decision.

ISSUE AND STANDARD OF REVIEW

¶4 Massengale asserts that the Labor Commission
misinterpreted the relevant statute and that he should therefore
have been permitted to pursue his permanent total disability
claim. The Labor Commission’s “interpretation of a statute is a
question of law, which we review for correctness.” Miller v. Utah
Dep’t of Transp., 2012 UT 54, ¶ 23, 285 P.3d 1208 (quotation
simplified).

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ANALYSIS

¶5 Utah law provides that a worker’s claim for either
temporary or permanent disability benefits is barred unless the
employee

(i) files an application for hearing with the Division
of Adjudication no later than six years from the
date of the accident; and

(ii) by no later than 12 years from the date of the
accident, is able to meet the employee’s burden of
proving that the employee is due the compensation
claimed under this chapter.

Utah Code Ann. § 34A-2-417(2)(a) (LexisNexis 2019). The statute
further provides, in subsection (2)(c), that the Labor Commission
“may enter an order awarding or denying an employee’s claim
for compensation under this chapter within a reasonable time
period beyond 12 years from the date of the accident, if” the
employee has complied with the requirements of subsection
(2)(a) above and “is actively adjudicating issues of
compensability before the commission” “12 years from the date
of the accident.” Id. § 34A-2-417(2)(c).

¶6 Massengale asserts that he met the requirements for his
claim to be considered within a reasonable time beyond twelve
years and that his disability claim was therefore timely under
subsection (2)(c). But to qualify for consideration under
subsection (2)(c), a claimant must first show that he or she has
complied with subsection (2)(a). Id. § 34A-2-417(2)(c)(i). Alliant
maintains that Massengale’s voluntary withdrawal of his 2014
application for permanent total disability benefits precludes him
from demonstrating that he was “able to meet [his] burden of
proving that [he] is due the compensation claimed” by the

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twelve-year mark, as required by subsection (2)(a). See id. § 34A-
2-417(2)(a)(ii). 1

¶7 Subsection (2)(a) is a statute of repose.2 Waite v. Utah Labor
Comm’n, 2017 UT 86, ¶ 17, 416 P.3d 635. This means that, unlike a
statute of limitations, the twelve-year limit can cut off a

1. The Labor Commission alternatively contends that
Massengale could not meet subsection (2)(c)’s requirement that
he be “actively adjudicating issues of compensability before the
commission” because he withdrew his application for hearing
with respect to his disability claim. See Utah Code Ann. § 34A-2-
417(2)(c)(ii) (LexisNexis 2019). The parties dispute whether the
requirement that a claimant be “actively adjudicating issues of
compensability” is concerned only with a snapshot of what is
happening at the twelve-year mark or whether it requires the
claimant to be continuously adjudicating the claim before and
after the twelve-year mark to preserve the Labor Commission’s
ability to consider the claim within a reasonable period beyond
twelve years. We ultimately need not resolve this question,
however, because we agree with the Labor Commission that
Massengale was unable to prove his entitlement to
compensation within the twelve-year period as required by
subsection (2)(a). See id. § 34A-2-417(2)(a)(ii).

2. The court in Waite v. Utah Labor Commission, 2017 UT 86, 416
P.3d 635, explained that the purpose of the statute of repose was
to “help[] insurance companies better manage their risks,
inform[] them as to the amount of reserves they need to keep,
and protect[] them against limitless litigation over old claims
where causation ha[s] become tenuous,” as well as to “help
employers by reducing the premiums they would have to pay,”
and that “[t]hese are the types of policy considerations that . . .
justify a legislative abridgment of a legal remedy.” Id. ¶ 25.

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claimant’s right to benefits even if the circumstances giving rise
to the claim have not yet occurred. Id. ¶¶ 11, 14. The statute of
repose at issue in this case—subsection (2)(a)—bars a claim if the
employee is unable to meet his or her “burden of proving that
the employee is due the compensation claimed under this
chapter” “by no later than 12 years from the date of the
accident.” Utah Code Ann. § 34A-2-417(2)(a). In the context of
permanent total disability claims, this burden typically includes
showing that the claimant has reached medical stability or
maximum medical improvement (MMI). See Waite, 2017 UT 86,
¶ 14; Macy’s Southtowne Center v. Labor Comm’n, 2019 UT App
148, ¶ 20, 449 P.3d 998. Medical stability “means that the period
of healing has ended and the condition of the claimant will not
materially improve.” Booms v. Rapp Constr. Co., 720 P.2d 1363,
1366 (Utah 1986). Only “once healing has ended[ can] the
permanent nature of the claimant’s disability . . . be assessed and
benefits awarded accordingly.” Macy’s Southtowne, 2019 UT App
148, ¶ 20 (quotation simplified). Thus, if a claimant has not yet
reached medical stability by twelve years following the accident,
the statute of repose “can cut off a claimant’s right to assert a
claim.” See Waite, 2017 UT 86, ¶ 14.

¶8 Because Massengale was pursuing a claim for surgery
alongside his permanent disability claim, he was not in a
position, at the twelve-year mark, to prove his entitlement to
permanent disability benefits. Even if he could have been
considered medically stable in the absence of surgery, 3 his

3. Massengale asserts that because he was medically stable prior
to the requested surgery, he was capable of proving his
permanent total disability claim within the statutory period. And
had Massengale elected to pursue only his permanent disability
claim at that time rather than seek surgery, we might be inclined
to agree. But having elected to pursue the surgery, which was
(continued…)

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continued pursuit of surgical options to improve his condition at
the time of filing his application for hearing precluded any
finding that he had reached MMI because there was no way of
knowing how the surgery would affect his impairment until
after he healed from surgery. Without his having reached MMI,
Massengale’s permanent total disability claim was not ripe for
adjudication within the twelve-year statutory period.

¶9 Massengale’s inability to prove his claim for permanent
disability benefits is effectively demonstrated, as the Labor
Commission observed, by his decision to voluntarily withdraw
his application for hearing with respect to that claim. If he “had
been able to prove entitlement within the 12-year period, no
withdrawal would have been necessary.” Indeed, having been
approved for the surgery to be paid by his employer—a surgery
he requested—Massengale could not continue to pursue his
permanent total disability claim until after the surgery was
complete and he had recovered from it. Because Massengale
could not show that he had reached MMI by the twelve-year
mark, he could not prove his entitlement to permanent total
disability benefits within the statutory period, and the statute of
repose therefore barred his claim.

(…continued)
expected to materially improve Massengale’s condition to some
unknown degree, Massengale could not have been considered to
have reached MMI. Massengale laments the fact that claimants
in his position—those who may elect to undergo surgery on the
eve of the twelve-year deadline—are effectively forced to choose
between seeking surgery and seeking permanent total disability
benefits. While we acknowledge and are sympathetic to the
unfortunate nature of the position in which Massengale has
found himself, such situations are the inevitable result of our
legislature’s choice to implement a twelve-year statute of repose
in workers’ compensation cases.

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CONCLUSION

¶10 Because Massengale was continuing to pursue a surgery
that had the potential to materially improve his condition at the
time the statute of repose expired, he could not establish his
entitlement to permanent total disability benefits within the
twelve-year statute of repose. Thus, the Labor Commission did
not err in determining that the statute of repose barred his
disability claim. Accordingly, we decline to disturb the Labor
Commission’s decision.

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