Mayhew v. Labor Commission

2024 UT App 81

THE UTAH COURT OF APPEALS

NORM C. MAYHEW, 1
Petitioner,
v.
LABOR COMMISSION, DARRELL W. ANDERSON CONSTRUCTION INC.,
AND WORKERS’ COMPENSATION FUND,
Respondents.

Opinion
No. 20220695-CA
Filed May 31, 2024

Original Proceeding in this Court

Michael Gary Belnap, Virginius Dabney,
and Stony V. Olsen, Attorneys for Petitioner
Michele L. Halstenrud and Hans Scheffler, Attorneys
for Respondents Darrell W. Anderson Construction
Inc. and Workers’ Compensation Fund

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 More than fifteen years ago, Norm C. Mayhew was injured
at work. In 2015, seven years after that accident, Mayhew filed a
claim seeking workers’ compensation benefits from his employer.
Since filing his industrial accident claim, Mayhew has engaged in

1. Respondents notified the court that Mr. Mayhew passed away
during the pendency of this appeal. We note that Utah Code
section 34A-2-423 allows the personal representative of a
deceased employee’s estate to pursue a claim for compensation.
Accordingly, we issue this opinion pursuant to rule 38 of the Utah
Rules of Appellate Procedure as the decision may be
determinative in any continued adjudication.
Mayhew v. Labor Commission

extensive efforts before an administrative law judge (the ALJ) and
the Labor Commission Appeals Board (the Commission) to
demonstrate that he is entitled to medical benefits and disability
benefits because the industrial accident rendered him
permanently unable to work. Mayhew petitioned for judicial
review of the Commission’s dismissal of his claim for permanent
total disability benefits after it determined his claim was time-
barred and he had obstructed the adjudicative process.

¶2 The relevant statute, section 34A-2-417 of the Utah Code,
contains a twelve-year statute of repose under which claims are
timely if, at the twelve-year mark from the date of the accident,
the claimant “is able to” meet the burden of proving that
compensation is due and “[he or she] is actively adjudicating
issues of compensability before the commission.” Because
Mayhew was actively litigating at the twelve-year mark from the
accident, the Commission erred by dismissing his claim under the
statute of repose. As such, we determine that while Mayhew acted
in a manner that was obstructive to the adjudicative process, this
behavior occurred in a non-hearing setting, and thus the
Commission did not have authority to dismiss Mayhew’s claim as
a sanction for the problematic conduct that occurred. We
therefore remand Mayhew’s case for further consideration.

BACKGROUND

¶3 In August 2008, Mayhew suffered a workplace accident
while employed as a concrete setter for Darrell W. Anderson
Construction Inc. (referred to collectively with its insurer,
Workers’ Compensation Fund, as Respondents). Mayhew was
injured while “using a post driver to drive rebar for temporary
fencing” and “he accidentally struck himself in the left foot with
the post pounder, in an area beyond the steel toe of his boot.”
Respondents have paid certain medical benefits in connection
with Mayhew’s injury. Specifically, since the accident in 2008,
Respondents have paid approximately $20,000 in temporary total

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disability compensation benefits; approximately $6,000 in
temporary partial disability compensation benefits;
approximately $7,000 in permanent partial disability
compensation benefits; and approximately $50,000 in medical
expenses on behalf of Mayhew. Over time, however, the parties
have disagreed about which injuries were caused by the accident,
the extent of those injuries, the medical treatment necessary for
those injuries, and Mayhew’s entitlement to past temporary
disability and permanent compensation benefits.

¶4 In March 2015, Mayhew filed his initial application for
hearing seeking medical and temporary benefits and permanent
total disability compensation benefits. After numerous hearing
continuances and delays, in October 2015, Mayhew sent a letter to
the ALJ requesting withdrawal of his permanent total disability
claim, leave to amend his application to add claims for temporary
total disability benefits and permanent partial disability benefits,
and an additional continuance of the hearing scheduled for
November 2015. In that letter, he asserted that his “claim for
[permanent total disability] benefits [was] unripe because he
[was] clearly not MMI.” 2 But, as of December 29, 2015, “no
amended application for hearing [had] been received from
[Mayhew] as anticipated.” The ALJ allowed Mayhew one extra
month to file an amended application and notified him that a
hearing would be scheduled based on the current application if
nothing further was filed.

¶5 Mayhew filed an amended application in early 2016, which
did not include a claim for permanent total disability benefits but
instead sought temporary total disability and permanent partial
disability benefits; however, this application noted that Mayhew
was still “not MMI” and would “receive an impairment rating
upon reaching MMI.”

2. MMI means maximum medical improvement.

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¶6 In November 2016, the ALJ held the first hearing on
Mayhew’s application to determine whether Mayhew’s injuries
were caused by the industrial accident, what treatment was
necessary for his injuries, and whether he was entitled to medical
benefits and past temporary benefits.

¶7 In April 2017, the ALJ issued interim findings, ordering
that the medical aspects of Mayhew’s claim be referred to a
medical panel for further evaluation and that Mayhew obtain and
file all radiology films with the ALJ on or before May 19, 2017, or
else risk dismissal of his application. After Mayhew refused to
participate in the medical panel “for some time” because of an
upcoming surgery and did not file the requested diagnostics with
the ALJ, the ALJ dismissed Mayhew’s case without prejudice
several months later.

¶8 The next day, Mayhew requested that the order of
dismissal be set aside. In August 2017, after receiving assurances
that Respondents were paying temporary compensation and
certain medical expenses, the ALJ denied the request, ordering
that Mayhew file another motion to set aside once his health
condition stabilized.

¶9 Mayhew asked the ALJ to set aside the dismissal and
continue the adjudication in July 2018 after he reached MMI
status. Though Respondents had paid medical expenses for and
indemnity benefits during Mayhew’s recent surgery, the parties
continued to argue about what benefits should be paid as a result
of Mayhew’s industrial accident. The ALJ set a formal hearing for
February 2019, and the parties requested a continuance two weeks
before that hearing to discuss settlement and to complete further
discovery because the case had become more complex. The ALJ
agreed to the requested continuance and rescheduled the hearing
for seven months later but indicated she had little confidence that
“more delay [would] help” and stated that she would “grant no
other continuances” in the case.

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¶10 Mayhew filed an amended application adding several
medical conditions to his claim for medical and temporary
benefits. In September 2019, a second hearing was held on those
claims. The ALJ imposed various deadlines on the parties prior to
the case proceeding to a medical panel. Mayhew submitted
opinion letters from two doctors who opined that he suffers from
complex regional pain syndrome (CRPS). Mayhew then filed a
number of “arguments regarding medical panel issues,” which
the ALJ refused to consider on the basis that they were “extremely
premature.”

¶11 In March 2020, the ALJ issued an amended interim order,
again referring the case to a medical panel for further evaluation
due to conflicting medical opinions. In response to the amended
interim order, Mayhew sent the ALJ an email asserting that
certain medical records must be missing from the medical records
exhibit. In reply, the ALJ issued an order outlining all medical
records the court had received and permitting Mayhew to submit
a response by late April 2020 with any proposed amendments to
the medical exhibit. The ALJ cautioned that if there were no
additional submissions, the medical exhibit would be closed and
deemed completed.

¶12 In April 2020, Mayhew submitted a letter to the ALJ and
asked her to consider it a motion to revise the medical record
summary to fix alleged page-numbering issues and to include the
opinion letters from his two doctors. Shortly thereafter,
Respondents objected to the motion as untimely. The parties
submitted several more motions to the ALJ over the disputed
medical records. The ALJ issued a second amended order in June
2020, which partially incorporated the additional medical records
and again referred the case to a medical panel for further
evaluation.

¶13 While the case proceeded before the medical panel,
Mayhew filed a motion requesting that the ALJ reconsider her

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second amended order, and he alleged that the summary of the
medical record presented “a grossly lop-sided view of the medical
evidence” that confirmed “a strong and improper bias [of the ALJ]
against” Mayhew, going so far as to allege that “the ALJ [was]
neglecting her duty as an ALJ” by not including all of Mayhew’s
submitted medical evidence. In response, the ALJ issued an order
in June 2020 stating that she would not rule on Mayhew’s
objections, which “appear[ed] to yet again request modification of
the fact findings,” “until the time of the issuance of the final
order.”

¶14 Mayhew then escalated the dispute to the Commission,
and in a June 2020 email, he requested interlocutory review of the
ALJ’s findings of fact and interim order and her refusal to
consider Mayhew’s demands to add his opinion letters to the
medical record and factual findings. In his motion for
interlocutory review, Mayhew highlighted what he perceived to
be all of the ALJ’s “errors, mischaracterizations, failures[,] and
actions,” including her compilation of “a defective and
incomplete medical record” and her appointment of an
“unqualified” medical panel chair, among other grievances.
Mayhew requested that another ALJ be appointed to handle the
case—asserting that the ALJ had “intentionally” made errors or
had “a faulty work ethic”—and that the new ALJ should be given
specific instructions on how to appoint qualified, unbiased
specialists to the medical panel.

¶15 Respondents filed a response to Mayhew’s motion for
interlocutory review, requesting that the Commission dismiss the
motion: “Although [Mayhew] does not like [the ALJ’s] decisions,
he has not presented a single instance where [she] has abused her
discretion or improperly managed the claim. [Mayhew’s] request
for interlocutory review is an effort to circumvent the adjudicative
process and the ALJ’s ability to manage this case.”

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¶16 Later that fall, the Commission dismissed Mayhew’s
motion for interlocutory review, stating that the Commission “has
consistently declined to engage in interlocutory review when it
diminishes and delays an ALJ’s ability to manage and resolve a
claim and when the issues raised in such motions can be resolved
or rendered moot by subsequent events.” Importantly, the
Commission observed that it would “engage in interlocutory
review only if the advantage of deciding the issues presented
clearly outweigh[s] ‘the interruption of the hearing process and
the other costs of piecemeal review.’” (Emphasis added.) The
Commission was “not convinced that the issues raised in
[Mayhew’s] motion require[d] immediate attention from the
[Commission] or warrant[ed] interruption of the hearing process
scheduled in this matter,” and because the Commission
determined that the ALJ’s “fact-finding decisions [fell] within her
discretion to manage the case,” the Commission would “not
usurp that authority through interlocutory review,” especially
when it was “clearly not warranted in this matter.”

¶17 Shortly before the twelfth anniversary of his workplace
accident, Mayhew renewed his claim for permanent total
disability benefits and requested that this claim be joined with the
earlier-filed medical and temporary benefits claim. But the ALJ
denied this request, offering her view that joining the two claims
would cause the medical and temporary benefits case to be
further delayed.

¶18 Following the Commission’s denial of Mayhew’s request
for interlocutory review, Mayhew proceeded to submit demands
directly to the ALJ via email with regard to the medical and
temporary benefits case. These demands included requests for
specific information about the medical panelists’ qualifications,
which Respondents opposed, arguing that “no rule, statute, legal
authority, or Commission precedent . . . supports [Mayhew’s]
request for information about” the medical panel chair and other
members. In April 2021, a hearing was scheduled for September

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2021. Mayhew sent an additional letter to the ALJ in July 2021,
reiterating his earlier demands for information about the
qualifications of the medical panel members. In August 2021, the
ALJ denied Mayhew’s request for information and explained her
reasoning for doing so. The ALJ also warned Mayhew that his
“failure to participate in the medical panel evaluation on an
unripe objection to the medical panel members, any other unripe
objection, or motions based on arguments that have long been
denied in other cases, [would] result in dismissal of the case.” The
ALJ notified the parties on August 24 that the medical panel
would evaluate Mayhew on August 31 via teleconference.

¶19 On August 30, 2021, Mayhew’s counsel escalated his
complaints again, this time emailing the Director of the
Adjudication Division (the Director) a seven-page letter marked
“confidential” and requesting once again that the ALJ “be
removed from” Mayhew’s case and “that she never be assigned
to or continue any other case that” Mayhew’s counsel was
involved with in the future. The August 2021 letter heavily
admonished the ALJ in what we perceive to be a personal attack,
making accusations against her: “[S]he is a bad judge. . . . [S]he is
slow, she is incompetent, she is lazy, and she is vindictive.” The
letter ended with a threat that Mayhew’s counsel would write a
letter to “the Governor and Mr. Mayhew’s State Senator and State
Representative and the media” if the ALJ was not immediately
removed from Mayhew’s case.

¶20 In reply, Respondents argued that Mayhew’s attacks on the
ALJ were “unsupported, inappropriate, and unprofessional,” and
asserted that Mayhew’s counsel violated the Utah Rules of
Professional Conduct and the Utah Standards of Professionalism
and Civility, which require, among other things, that lawyers treat
judges “in a courteous and dignified manner.”

¶21 Following Respondents’ filing, Mayhew’s counsel sent
another email to the Director. In this September 2021

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communication, Mayhew’s counsel expressed discontent at the
dissemination to the ALJ and Respondents of his earlier letter
marked “confidential” and once again attacked the ALJ’s
competence and demanded that she be removed from this case
and all future cases associated with Mayhew’s counsel: “I do not
want her to ever be assigned to any case that I am involved in. She
has a problem with me and I most definitely have a problem with her.”
(Emphasis added.) Mayhew’s counsel underscored the ALJ’s
“antipathy,” “laziness, vindictiveness, incompetence, and anti-
injured worker approach,” and accused her of doing “dirty work”
for Respondents.

¶22 In September 2021, the ALJ canceled the scheduled hearing
in the permanent total disability case. The ALJ construed
Mayhew’s counsel’s letters as a motion to disqualify her, and she
referred that motion to the Director for determination. In
November 2021, the Director denied the motion based on
Mayhew’s failure to comply with the filing requirements outlined
in rule 63 of the Utah Rules of Civil Procedure, which was deemed
applicable because the Labor Commission had not enacted
administrative rules to address disqualification of its arbiters. The
Director also determined that Mayhew’s allegations of bias,
prejudice, and conflict of interest on the part of the ALJ had no
merit. In addition, the Director concurred with Respondents that
Mayhew’s “motion lack[ed] civility and professionalism in its
tone, assertions and language,” and went into great detail
concerning the Utah Rules of Professional Conduct and the Utah
Standards of Professionalism and Civility. The Director stopped
short of imposing sanctions but “encouraged” Mayhew’s counsel
to review these rules.

¶23 Subsequently, the ALJ issued a final order in December
2021, dismissing both Mayhew’s medical and temporary
disability benefits claim and his permanent total disability
benefits claim with prejudice due to his and his counsel’s
“obstruction and refusal to participate in a medical panel” and on

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the basis that, through “repeated neglectful and willful
misbehavior,” they “abused the adjudication process.” In the
order, the ALJ discussed contempt at length. While she
acknowledged that “administrative law forums are not judicial
courts, and administrative law judges in Utah do not have
contempt powers,” the ALJ found “it likely that [Mayhew] could
be found in contempt in a judicial court for failing to . . . attend
the medical panel evaluation.” The ALJ also discussed abuse of
process in great detail and determined that “[o]bjectively, the
evidence shows [Mayhew] has abused the adjudication process in
filing the Motion to Disqualify” her, because the motion “was not
filed in good faith” and instead was “subterfuge used to ignore”
the Commission’s order and “launch a baseless but long-brewed
personal attack against the ALJ.”

¶24 Thereafter, Mayhew filed two separate motions for review
before the Commission. First, he asked the Commission to review
the ALJ’s decision to dismiss his claim for medical and temporary
benefits with prejudice, asserting that dismissal of an injured
worker’s case for failure to attend a medical panel evaluation is
not an available sanction and that, rather, suspension of the claim
until the exam can occur is the appropriate remedy. See Utah Code
§ 34A-2-602(2). Mayhew also asserted that the dismissal of this
claim demonstrated the ALJ’s bias and prejudice toward
Mayhew’s counsel.

¶25 Second, Mayhew filed a separate motion for review of the
dismissal with prejudice of his permanent total disability benefits
claim, arguing that the failure of the ALJ to hold a hearing was a
“violation of due process.” Mayhew also reiterated that his case
should be assigned to a new ALJ.

¶26 Respondents filed a response requesting that the
Commission affirm the ALJ’s order dismissing Mayhew’s claim
for permanent total disability with prejudice. Respondents
argued that the ALJ’s dismissal was appropriate because “he

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egregiously violated numerous orders from the ALJ and engaged
in conduct that served no purpose but to disrupt the adjudicative
process.” Respondents also argued that because no hearing had
been held on Mayhew’s permanent total disability claim and the
case was still in the discovery phase, the sanction of dismissal was
permissible under rule 37 of the Utah Rules of Civil Procedure. In
response to Mayhew’s motion to review the dismissal of his claim
for medical and temporary benefits, Respondents argued the ALJ
has broad authority over the adjudication process, the ALJ
appropriately dismissed Mayhew’s permanent total disability
benefits claim with prejudice, the ALJ did not abuse her discretion
in not consolidating his two claims or in excluding his expert
opinions, and any delay in the adjudicative process was the fault
of Mayhew and his counsel.

¶27 In May 2022, the Commission issued an order modifying
the ALJ’s decision, wherein the Commission determined it could
not dismiss Mayhew’s claims on the basis of counsel’s
contemptuous behavior—although it very much would have
liked to take such action—but affirmed the dismissal of Mayhew’s
disability compensation claims on a different ground, one not
specifically discussed by the ALJ: it concluded that it did not have
jurisdiction to award benefits because of “Mayhew’s dilatory
tactics in this case.”

¶28 In particular, the Commission acknowledged in its order
that Mayhew’s counsel’s letters to the Director were “replete with
ad hominem attacks and unsubstantiated assertions against [the
ALJ] regarding her competence and alleged bias against Mr.
Mayhew’s counsel.” Further, the Commission “agree[d] with [the
ALJ’s] sentiment that counsel for Mr. Mayhew ha[d] exhibited
behavior worthy of being held in contempt,” going so far as to
assert that “[i]n another forum, . . . such behavior would be met with
dismissal of Mr. Mayhew’s cases even without a finding of
contempt.” (Emphasis added.) The Commission conceded,
however, that it was “not aware of any precedent for sanction or

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dismissal in Commission proceedings based on violations of the
standards of professional conduct” and sought “[g]uidance on
this issue from the court on appeal,” especially “given the severity
of the behavior from Mr. Mayhew’s side in this matter and their
attempts to undermine the integrity of the Commission’s
process.”

¶29 Regarding its jurisdiction to award benefits, the
Commission determined that section 34A-2-417(2) of the Utah
Code “may operate as a statute of repose,” but even so, “a claim
may be properly barred under its terms because it allows for
adjudication of a claim to continue within a reasonable time
beyond the 12-year period if an injured worker meets certain
requirements and is either cooperating with a reemployment plan
or actively adjudicating issues of compensability.” Because
Mayhew “purposefully delayed adjudication of his claim[s] on
more than one occasion” by “engag[ing] in multiple evasive and
dilatory tactics, including . . . failing to timely submit certain
medical and diagnostic evidence[,] filing premature objections
regarding the medical panel[,] . . . asking for a last-minute
continuance of his hearing,” and failing to appear before the
medical panel via videoconference, the Commission determined
that Mayhew had “willfully imped[ed] the active adjudication of
compensability issues before the Commission.” Accordingly, it
concluded that Mayhew “has made it so he is not able to meet his
burden of proving that he is due the disability compensation he
claims within 12 years of the date of the accident, including the
permanent total disability compensation claimed in [that] case.”

¶30 Regarding Mayhew’s claim for medical expenses, future
medical care, and travel expenses, the Commission agreed that
while suspension of those claims did not seem sufficient to
remedy “his behavior and representation,” “dismissal as a
sanction is only applicable to Commission proceedings when a
party fails to obey an ALJ’s order regarding discovery.”
Accordingly, the Commission reversed the ALJ’s dismissal and

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ordered that Mayhew’s claims for these benefits be suspended
pending compliance with the medical panel examination.

¶31 Mayhew filed motions for reconsideration asking the
Commission to address whether the medical panel needed to
consist of specialists and, if so, to order that a new medical panel
be appointed to review his medical benefits claim. In his motion
for reconsideration of the dismissal of his permanent total
disability claim, Mayhew argued that he had diligently and
zealously pursued his claim for disability benefits and so the
Commission’s determination that he voluntarily suspended his
claim by refusing to go to a medical panel evaluation was error.
Respondents filed a response, requesting that the Commission
affirm its order. The Commission denied Mayhew’s requests for
reconsideration and affirmed its previous decisions, stating that
because the twelve-year statute of repose had expired while the
ALJ was overseeing the adjudication of his medical and
temporary benefits case and Mayhew “took steps to have his
claim suspended by deliberately skipping the medical panel
evaluation after confirming he would attend,” Mayhew was not
actively pursuing issues of compensability before the Labor
Commission as required to prevent the dismissal of his disability
compensation claims.

¶32 Mayhew now petitions for judicial review of the
Commission’s dismissal of his claim for permanent disability
compensation benefits.

ISSUES AND STANDARD OF REVIEW

¶33 We address two issues on appeal. 3 First, Mayhew asserts
that the Commission misapplied Utah Code section 34A-2-417(2)

3. Mayhew presents an additional claim of error on appeal: that
the Commission denied his right to due process by dismissing his
(continued…)

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when it determined it lacked jurisdiction to award compensation
because he was not actively adjudicating his permanent total
disability benefits claim within the twelve-year time limit. Second,
Respondents assert that we can affirm the dismissal of Mayhew’s
claim on the alternative basis that the Commission has statutory
authority to adjudicate contempt. Both of these issues present
questions of statutory interpretation, and the “Commission’s
interpretation of a statute is a question of law, which we review
for correctness.” Massengale v. Labor Comm’n, 2020 UT App 44, ¶ 4,
462 P.3d 417 (quotation simplified), cert. denied, 471 P.3d 168 (Utah
2020); see also Muddy Boys, Inc. v. Department of Com., 2019 UT App
33, ¶ 9, 440 P.3d 741 (“A party’s challenge to an administrative
agency’s analysis of a statute presents an issue of statutory
interpretation that we review for correctness.”).

ANALYSIS

I. The Statute of Repose Does Not Deprive the Commission of
Jurisdiction to Award Permanent Total Disability Benefits to
Mayhew

¶34 Utah workers’ compensation law has specific provisions
setting forth the time limits for bringing claims. As relevant here,
Utah law provides as follows:

A claim . . . is barred, unless the employee . . . 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. . . . The commission may enter
an order awarding or denying an employee’s claim

permanent total disability claim without holding a hearing or
following statutory procedures. But because of our resolution of
the first two issues, we do not need to address Mayhew’s due
process claim.

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for compensation under this chapter within a
reasonable time period beyond 12 years from the
date of the accident, if . . . 12 years from the date of the
accident . . . the employee is actively adjudicating
issues of compensability before the commission.

Utah Code § 34A-2-417(2) (emphasis added).

¶35 The Commission concluded that under this statute,
Mayhew had not been actively adjudicating his permanent total
disability claim because he refused to attend the medical panel
exam and because Mayhew’s counsel had engaged in other
contemptuous behavior. Thus, the Commission concluded that
this statute of repose barred Mayhew’s claim.

¶36 But this interpretation of Utah Code section 34A-2-417(2)
does not comport with a plain-language reading of the statute.
Today, we answer the question left unresolved in Massengale v.
Labor Commission, 2020 UT App 44, 462 P.3d 417, cert. denied, 471
P.3d 168 (Utah 2020), namely, “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, in the alternative, “whether it requires the
claimant to be continuously adjudicating the claim before and
after the twelve-year mark to preserve the Commission’s ability
to consider the claim within a reasonable period beyond twelve
years.” Id. ¶ 6 n.1 (quotation simplified).

¶37 Our interpretation of the statute is that the twelve-year
mark contemplates a “snapshot” in time. Id. Thus, at twelve years
from the date of his accident, Mayhew had to be able to meet his
burden of proving that he was due the compensation claimed. See
Utah Code § 34A-2-417(2)(a)(ii). And for the Commission to
award benefits within a reasonable time period beyond twelve
years from the date of the industrial accident, Mayhew had to
show that, at the twelve-year mark, he was “actively adjudicating

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issues of compensability before the commission.” Id. § 34A-2-
417(2)(c).

¶38 In August 2020, at the twelve-year mark, Mayhew was
taking actions (as described above) to actively adjudicate his
compensation claim. He had just filed his new application for
hearing on his permanent total disability claim and was litigating
with Respondents about the medical records exhibit and the
medical panel. We have no doubt that the statutory requirement
of “active adjudication” was met as of August 28, 2020. And that
is all the statute of repose requires.

¶39 We certainly do not condone Mayhew’s counsel’s
combative behavior, which appears to have problematically
escalated into personal attacks against the ALJ in August 2021.
And we do not fault the ALJ for taking corrective action in
response to the personal attacks levied against her. But based on
the factual record listed above and our determination that the
repose imposed by section 34A-2-417(2) is based on a snapshot in
time—no later than twelve years from the date of the accident
Mayhew must be able to prove that he is due the compensation
claimed and be actively adjudicating issues of compensability—
the Commission’s conclusion that Mayhew was barred from
pursuing his permanent total disability claim because of the
actions he took in the months following the filing of that claim
was error. In August 2020, when Mayhew filed his application for
hearing, he was not at that time “willfully impeding the active
adjudication of compensation issues before the Commission.” He
was waiting for notice of the date of the medical panel evaluation,
no hearing had been scheduled in the permanent total disability
case, and he had not yet skipped the scheduled videoconference
examination with the medical panel. Therefore, the Commission’s
determination that it had no jurisdiction to consider whether
Mayhew was entitled to permanent total disability benefits was
erroneous.

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II. The Commission Has No Power to Punish the Contemptuous
Actions Here

¶40 We decline to affirm the dismissal of Mayhew’s permanent
total disability claim on the alternative grounds offered by
Respondents that the Commission has either inherent or statutory
authority to dismiss Mayhew’s claim as punishment for his (and
his counsel’s) particular contemptuous conduct.

¶41 “One often-declared difference between judicial and
legislative power is that the former determines the rightfulness of
acts done; the latter prescribes the rule for acts to be done. The one
construes what has been; the other determines what shall be.”
Interstate Com. Comm’n v. Brimson, 155 U.S. 3, 9 (1894) (Brewer, J.,
dissenting). Separation of powers is a crucial part of our system of
government and depends upon each branch respecting the other:

The powers of the government of the State of Utah
shall be divided into three distinct departments, the
Legislative, the Executive, and the Judicial; and no
person charged with the exercise of powers
properly belonging to one of these departments,
shall exercise any functions appertaining to either of
the others, except in the cases herein expressly directed
or permitted.

Utah Const. art. V, § 1 (emphasis added). In other words, powers
that are not inherent to a particular branch must be expressly
authorized.

¶42 Notably, a “court’s contempt ruling can be grounded in
either its inherent or statutory contempt power.” Rosser v. Rosser,
2021 UT 71, ¶ 38, 502 P.3d 294. “It is undoubtedly true that courts
of general and superior jurisdiction possess certain inherent
powers not derived from any statute. Among these are the power
to punish for contempt . . . .” In re Evans, 130 P. 217, 224 (Utah
1913). But this inherent power does not extend to legislatively

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Mayhew v. Labor Commission

created bodies, such as the Commission. See Muddy Boys, Inc. v.
Department of Com., 2019 UT App 33, ¶ 18, 440 P.3d 741.

¶43 Instead, state legislatures must explicitly vest the power to
adjudicate contempt with such bodies. C.f. Marcus v. Workmen’s
Comp. Appeals Board, 111 Cal. Rptr. 101, 103 (Cal. Ct. App. 1973)
(“Labor Code section 134 confers upon the board the power to
protect its integrity and dignity and to insure the orderliness of its
proceedings through the use of the contempt power.”); Rushing v.
Tennessee Crime Comm’n, 117 S.W.2d 4, 8 (Tenn. 1938) (“[T]he
Legislature of this State in more than one instance has conferred
power upon boards and commissions to punish for contempt . . . .
We find by reference to the decisions of other States that the
power of the Legislature to authorize boards and commissions to
punish for contempt has been sustained.”). In other states where
boards are not vested with such power, they must file a petition
for contempt in a designated court, as the board cannot itself
impose the sanction. See, e.g., Whitmer v. Hilton Casitas Homeowners
Ass’n, 425 P.3d 253, 257 (Ariz. Ct. App. 2018) (“[T]he statutory
schemes governing several administrative bodies allow the
superior court to act as a forum for such contempt proceedings.”);
In re Rowan, 694 A.2d 1002, 1005 (N.H. 1997). We therefore
conclude that, here, neither the ALJ nor the Commission has
inherent power to sanction litigants for contempt.

¶44 Respondents assert, however, that the ALJ and the
Commission have statutory power to sanction litigants. And while
the Commission did not dismiss Mayhew’s permanent total
disability claim based on Mayhew’s counsel’s bad behavior,
Respondents argue that the dismissal can be upheld based on this
alternative basis. They direct our attention to a provision of the
Utah Administrative Procedures Act that allows an ALJ presiding
over an adjudicative proceeding to take any “appropriate
measures necessary to preserve the integrity of the hearing.” Utah
Code § 63G-4-206(2). Respondents assert that this section
provides the Commission authority to sanction intemperate or

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Mayhew v. Labor Commission

unprofessional behavior in a Commission proceeding. We note,
as an initial matter, that the Commission itself did not consider
that this statute provided authority to impose dismissal sanctions,
stating that it was “not aware of any precedent for sanction or
dismissal in Commission proceedings based on violations of the
standards of professional conduct.” And we agree with the
Commission that this particular statute contemplates sanctions
imposed only in the context of an adjudicative hearing, which is
not the context presented here.

¶45 This case falls outside the hearing context; all of the
contemptuous conduct on the part of Mayhew’s counsel occurred
through letters and filings, not during a hearing. In fact, as noted
above, the ALJ canceled the hearing set for adjudication of
Mayhew’s permanent total disability claim in September 2021 and
a hearing was never held. So, the Commission was limited to the
lone statutory sanction listed for Mayhew’s refusal to attend the
medical panel examination and his counsel’s obstreperous
behavior: suspension of his medical expenses claim. See id. § 34A-
2-602(2) (allowing suspension of a claim during the period an
employee refuses to submit to or obstructs a medical
examination). For this reason, we cannot affirm the dismissal of
Mayhew’s claim on the alternative ground offered by
Respondents. Accordingly, because the section pointed to by
Respondents applies only to hearings in formal adjudicative
proceedings, and because Mayhew’s permanent total disability
case had not reached that point in the process, the Commission
had no authority to dismiss the case as a sanction under this
section as it is currently written.4

4. The Utah Legislature may want to consider broadening the
power of the Commission and its officers to provide the specific
authority to sanction as appropriate to preserve the integrity of an
adjudicative proceeding generally.

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Mayhew v. Labor Commission

CONCLUSION

¶46 For the reasons discussed above, the Commission erred
when it determined that it did not have jurisdiction to award
disability benefits to Mayhew. And we are unable to affirm on the
alternative ground that the Commission has inherent or statutory
authority to dismiss Mayhew’s case as a sanction under the
circumstances presented here. Thus, we reverse the dismissal and
return the matter to the Commission to assess the validity of
Mayhew’s permanent total disability claim.

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