Employers' Reinsurance Fund v. Utah Labor Commission

2013 UT App 139
_________________________________________________________

THE UTAH COURT OF APPEALS

EMPLOYERS’ REINSURANCE FUND,
Petitioner,
v.
UTAH LABOR COMMISSION; FRANK KOCH; MINE SAFETY
APPLIANCE CO.; AND PACIFIC EMPLOYERS INSURANCE COMPANY,
Respondents.

Per Curiam Decision
No. 20130174‐CA
Filed May 31, 2013

Original Proceeding in this Court

Edwin C. Barnes and Robert D. Andreasen,
Attorneys for Petitioner
Aaron J. Prisbey, Attorney for Respondent
Frank Koch

Before JUDGES DAVIS, THORNE, and VOROS.

PER CURIAM:

¶1 Employers’ Reinsurance Fund (ERF) seeks judicial review of
a decision of the Utah Labor Commission denying a motion to
dismiss and remanding the case to an Administrative Law Judge
(ALJ) for further proceedings. This case is before the court on a sua
sponte motion for summary dismissal for lack of jurisdiction.

¶2 In 2008, Frank Koch filed an application seeking permanent
total disability benefits as a result of a December 20, 1991 industrial
accident. ERF moved to dismiss, arguing that Koch’s claim was
barred by the six‐year statute of limitations in the Utah Workers’
Compensation Act. See Utah Code Ann. § 34A‐2‐417(2)(a)(i)
(LexisNexis 2011). The ALJ denied the motion to dismiss and
Employers’ Reinsurance Fund v. Labor Commission

entered a tentative finding of permanent total disability. ERF filed
a motion for review, contending that Koch’s claim was time‐barred.
The Commission concluded that Koch satisfied the six‐year filing
requirement; it affirmed the ALJ’s tentative determination that
Koch was permanently and totally disabled; and it remanded the
case to the ALJ “to complete the adjudicative process” on the
permanent total disability claim. ERF filed a petition for review
seeking judicial review of the denial of its motion to dismiss.1

¶3 An aggrieved party may seek judicial review of the “final
agency action resulting from formal adjudicative proceedings.”
Utah Code Ann. § 63G‐4‐401(1) (LexisNexis 2011). “The Utah
Administrative Procedures Act does not specifically define ‘final
agency action.’” Barker v. Utah Pub. Servs. Comm’n, 970 P.2d 702, 705
(Utah 1998). However, “Utah cases on finality found no final order
in the following circumstances: . . . a remand for further
proceedings, Sloan v. Board of Review, 781 P.2d 463, 464 (Utah Ct.
App. 1989), [and] a denial of a motion to dismiss, Barney v. Division
of Occupational & Prof’l Licensing, 828 P.2d 542, 544 (Utah Ct. App.
1992).” Id. at 706. In Barney v. Division of Occupational & Professional
Licensing, 828 P.2d 542 (Utah Ct. App. 1992) (per curiam), the
petitioner sought judicial review of the denial of motions to
dismiss. See id. at 543. The agency argued that the court lacked
jurisdiction to consider a petition for review taken from an
interlocutory order of an administrative agency. We concluded that
“[t]he denial of a motion to dismiss allows the proceeding to
continue in the agency and is not a final order for purposes of
judicial review.” Id. at 544. Similarly, in Sloan v. Board of Review, 781
P.2d 463 (Utah Ct. App. 1989) (per curiam), we concluded that “an

1. In response to the sua sponte motion, ERF states that after
remand to the ALJ, it chose not to file a reemployment plan, and
the ALJ proceeded to determine the permanent total disability case.
ERF states that it has filed a motion for review of the ALJ final
order by the Commission.

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Employers’ Reinsurance Fund v. Labor Commission

order of [an] agency is not final so long as it reserves something for
the agency for further decision.” Id. at 464.

¶4 In this case, an ALJ denied ERF’s motion to dismiss the
benefits claim as time‐barred. The Commission affirmed the ALJ’s
denial and remanded the case to the ALJ for further adjudicative
proceedings. Those adjudicative proceedings will not be complete
until the ALJ resolves issues related to reemployment and finalizes
the permanent total disability award. ERF states in its response to
the sua sponte motion that, following the remand, it waived the
opportunity to file a reemployment plan. ERF contends that,
because the Commission had reviewed the ALJ’s interim order
denying a motion to dismiss, the Commission’s decision is final for
purposes of judicial review despite any ongoing proceedings
before the ALJ. We rejected a similar argument in Target Trucking
v. Labor Commission, 2005 UT App 70, 108 P.3d 128 (per curiam). In
that case, the Commission overturned an ALJ’s final award of
permanent total disability, but it affirmed the tentative
determination of permanent total disability and “remanded in
order for the ALJ to determine further issues, such as the
rehabilitation or reemployment plan.” Id. ¶ 2. We dismissed the
petition for review, holding that a tentative determination of
permanent total disability is not final for purposes of judicial
review until the statutory requirements for consideration of
reemployment or rehabilitation are met. See id. at ¶ 6. Because the
denial of a motion to dismiss is not a final agency action, we lack
jurisdiction over ERF’s petition for review.

¶5 While acknowledging that its petition for review was filed
prior to a final agency action on Koch’s disability claim, ERF urges
us to consider the petition for review as an interlocutory appeal. In
Merit Electrical & Instrumentation v. Utah Department of Commerce,
902 P.2d 151 (Utah Ct. App. 1995), we declined a request to adopt
the collateral order doctrine to consider a petition for review of a
nonfinal agency order. Id. at 153. We noted,

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Employers’ Reinsurance Fund v. Labor Commission

The Utah Legislature has made its intent clear with
regard to this court’s jurisdiction over appeals from
administrative agency actions. The Utah
Administrative Procedures Act provides in part that
the Supreme Court and Court of Appeals have
jurisdiction to “review all final agency action
resulting from formal adjudicative proceedings.”
Utah Code Ann. § 63‐46b‐16 (1993) (emphasis
added); see also id. § 78‐2a‐3(2)(a) (Supp. 1994). Any
deviation from the requirement for final agency
action must also come from the Legislature.

Id. In the absence of a provision granting us jurisdiction to consider
review of an agency’s interlocutory order, we cannot consider a
petition for review from the denial of ERF’s motion to dismiss.

¶6 It is a court’s first duty to determine if it has jurisdiction.
Varian‐Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App.
1989). If the court concludes that it does not have jurisdiction, “it
retains only the authority to dismiss the action.” Id. We dismiss the
petition for review for lack of jurisdiction. This dismissal is not a
determination of the merits of the petition for review and is
without prejudice to a timely petition brought at the culmination
of the agency proceedings.

20130174‐CA 4 2013 UT App 139