LPI v. LBR Comm'n

2009 UT 41
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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LPI Services and/or Travelers 	No. 20080063
Indemnity Co. of Connecticut,
Petitioners
v.
Michael McGee and the Utah 	F I L E D
Labor Commission,
Respondents. 	July 21, 2009
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Original Proceedings in the Utah Court of Appeals
Attorneys: 	Mark R. Sumsion, Michael K. Woolley, Salt Lake City,
for petitioners
Richard Burke, Sandy, for respondent Michael McGee
Alan Hennebold, Salt Lake City, for respondent Utah
Labor Commission
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On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	LPI Services and Travelers Indemnity Co. (collectively
“LPI”) seek reversal of the court of appeals’ decision affirming
the Labor Commission’s (the “Commission”) preliminary finding
that Michael McGee is permanently and totally disabled. 	LPI
argues that the court of appeals applied the wrong standard of
review by granting deference to the Commission’s statutory
interpretation of Utah Code section 34A-2-413(1)(c)(iv). 	It
further argues that the Commission exceeded its rulemaking
authority when promulgating rule 612-1-10.D.1 (the “Rule”)
because it conflicts with the statutory language. 	We affirm.

No. 20080663 	2
FACTUAL AND PROCEDURAL BACKGROUND
¶2 	On July 4, 2001, while working for LPI as a building
engineer, McGee injured his lower back when he and three other
employees attempted to move a 600-pound motor. 	McGee applied for
Permanent Total Disability (“PTD”) benefits. 	At the hearing to
determine McGee’s entitlement to PTD, both sides presented
reemployment experts who proffered opinions regarding McGee’s
employability based on his medical reports. 	McGee’s expert
concluded that McGee “was an unfit candidate for either re-
employment or vocational rehabilitation.” 	Conversely, LPI’s
expert concluded that McGee “belonged in the light physical
demand characteristics of work level” and identified two jobs he
considered suitable for McGee. 	Both of these jobs paid less than
the average weekly wage for the State of Utah at the time of the
industrial accident. 	The administrative law judge (the “ALJ”)
entered a preliminary finding of PTD based in part on his
determination under the Rule that there was no other work
reasonably available for McGee to perform because the only
available employment paid less than the state’s average weekly
wage.
¶3 	LPI filed a Motion to Review the ALJ’s ruling with the
Labor Commission Appeals Board (“Appeals Board”), arguing that
the controlling statute, Utah Code section 34A-2-413(1)(c)(iv),
lists the only factors--age, education, past work experience,
medical capacity, and residual functional capacity--that the
Commission can consider when determining whether other work is
reasonably available. 	Pursuant to the Rule, however, the
Commission will only find that other work is reasonably available
if “[t]he work provides a gross income at least equivalent to
. . . [t]he current state average weekly wage, if at the time of
the accident the claimant was earning more than the state average
weekly wage then in effect.” 	Utah Admin. Code r. 612-1-10.D.1
(2009). 	LPI argues that the Rule adds a wage requirement not
present in the statute. 	The Appeals Board affirmed the ALJ’s
decision, holding that the statutory term “past work experience”
permits consideration not only of the injured worker’s past job
duties, but also of other aspects of the employment contract such
as previous wages.
¶4 	LPI re-urged its argument before the court of appeals
without success. 	Finding an implicit grant of discretion to the
agency in the broad and generalized term “other work reasonably
available,” the court of appeals analyzed the Commission’s Rule
for abuse of discretion. 	Under this standard of review, the
court of appeals held that the Commission properly supplemented
the “personal, physical characteristics of the injured employee”

3 	No. 20080663
factors listed in section 34A-2-413(1)(c)(iv) with a second
category of factors addressing “the prospective job market”
(wage, location, and the regular availability of work). 	LPI
Servs. v. Labor Comm’n, 2007 UT App 375, ¶¶ 17, 20, 173 P.3d 858.
Additionally, the court of appeals held that the statutorily
listed factor “past work experience” subsumes consideration of
wages. 	Id. ¶ 22. 	We have jurisdiction in this case pursuant to
Utah Code section 78A-3-102(3)(a) (2008).
ISSUES & STANDARD OF REVIEW
¶5 	We granted LPI’s petition for certiorari to review two
issues: 	first, whether the court of appeals applied the correct
standard of review and second, whether the court of appeals erred
in determining that the Labor Commission acted within its
authority in promulgating the Rule.
¶6 	On certiorari, this court reviews the decision of the
court of appeals for correctness, giving no deference to its
conclusions of law. 	Thomas v. Color Country Mgmt., 2004 UT 12,
¶ 9, 84 P.3d 1201.
ANALYSIS
I. 	THE COURT OF APPEALS APPLIED THE CORRECT STANDARD OF REVIEW
TO THE COMMISSION’S RULE BECAUSE UTAH CODE SECTION 34A-2-
413(1)(c)(iv) IMPLICITLY GRANTS THE COMMISSION DISCRETION TO
INTERPRET THE TERM “OTHER WORK REASONABLY AVAILABLE”
¶7 	Absent a legislative grant of discretion, this court
reviews an agency’s interpretation of its organic statute for
correctness, granting no deference to the agency’s
interpretation. 	Martinez v. Media-Playmaster Plus, 2007 UT 42,
¶¶ 41-42, 164 P.3d 384. 	But where the legislature has granted
discretion to an agency to interpret the statutory provision at
issue, we will affirm the agency’s interpretation if it is
reasonable. 	Morton Int’l, Inc. v. Auditing Div. of the Utah
State Tax Comm’n, 814 P.2d 581, 587 (Utah 1991) (superseded by
Utah Code Ann. § 59-1-610(1)(b) with regard to administrative
decisions made by the Utah State Tax Commission as stated in 49th
St. Galleria v. Tax Comm’n, Auditing Div., 860 P.2d 996 (Utah Ct.
App. 1993)).
¶8 	The legislature may grant an agency discretion, either
explicitly or implicitly, to interpret specific statutory terms.
Id. at 588. For example, the legislature expressly granted the
Commission discretion in section 34A-2-413 when it mandated that
“[t]he commission shall establish rules regarding part-time work

No. 20080663 	4
and offset.” 	Utah Code Ann. § 34A-2-413(7)(f)(I) (2005). 	The
legislature may also implicitly grant discretion to an agency.
Morton, 814 P.2d at 588. 	“[W]hen the operative terms of a
statute are broad and generalized, these terms bespeak a
legislative intent to delegate their interpretation to the
responsible agency.” 	Id. 	(internal quotation marks omitted).
For example, this court has held that by using the term “equity
and good conscience” the legislature clearly intended to confer
broad discretion to the Department of Employment Security to make
determinations under this standard. 	Salt Lake City Corp. v.
Dept. of Employment Sec., 657 P.2d 1312, 1316-17 (Utah 1982).
¶9 	This court has “also granted an agency’s statutory
interpretation deference when the statutory language suggested
that the legislature . . . left the specific question at issue
unresolved.” 	Morton, 814 P.2d at 588. 	Accordingly, “when there
is more than one permissible reading of the statute and no basis
in the statutory language or legislative history to prefer one
interpretation over another . . . [t]he agency that has been
granted authority to administer the statute is the appropriate
body to” interpret it. 	Id. at 588-89. 	But if we can discern the
legislature’s intent by using the traditional tools of statutory
interpretation, we grant no deference to the agency and interpret
the statute “in accord with its legislative intent.” 	Id. at 589;
cf. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842-43 (1984) (“First, always, is the question whether
Congress has directly spoken to the precise question at issue.
If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.”).
¶10 	All parties agree with the general standards outlined
above and likewise agree that the Commission lacks an explicit
grant of discretion to interpret section 34A-2-
413(1)(c)(iv)(2005). 	But the parties disagree on whether the
term “other work reasonably available” implicitly grants the
Commission discretion. 	We find that the plain language of the
statute is ambiguous but that the legislative history indicates
that the legislature clearly intended to grant the Commission
discretion to consider factors beyond the five enumerated in the
statute when determining whether other work is reasonably
available.

1 Both the Labor Commission and Mr. McGee filed respondents’
briefs in this matter, and we collectively refer to them as
Respondents. 	In those instances where their arguments differ, we
will refer to them individually.
5 	No. 20080663
A. 	Section 34A-2-413(1)(c)(iv) Does Not Prevent the Labor
Commission From Considering More Than the Five Enumerated Factors
When Determining Whether Other Work Is Reasonably Available
¶11 	“Above all, this court’s primary objective in
construing enactments is to give effect to the legislature’s
intent.” 	Savage v. Utah Youth Vill., 2004 UT 102, ¶ 18, 104 P.3d
1242 (internal quotation marks omitted). 	To discern legislative
intent, “we look first to the statute’s plain language.”
Martinez, 2007 UT 42, ¶ 46. 	“We read the plain language of the
statute as a whole[] and interpret its provisions in harmony with
other statutes in the same chapter and related chapters.” 	Miller
v. Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592. 	When the plain meaning
of the statute can be discerned from its language, no other
interpretive tools are needed. 	Martinez, 2007 UT 42, ¶ 47.
However, “a court should not follow the literal language of a
statute if its plain meaning works an absurd result.” 	Savage,
2004 UT 102, ¶ 18. 	“[I]f the language is ambiguous, the court
may look beyond the statute to legislative history . . . to
ascertain the statute’s intent.” 	Martinez, 2007 UT 42, ¶ 47.
¶12 	We now turn to the statutory language at issue here.
First, we consider the conflicting interpretations of the
statutory language argued by both sides. 	Then, finding the
statutory language unclear, we examine the legislature’s intent
when it passed the 1995 amendment to the Workers’ Compensation
Act, which added the language at issue. 	Finally, we clarify that
Martinez does not limit the Commission’s consideration of “other
work reasonably available” to the five enumerated statutory
factors.
1. 	The Plain Language of Section 34A-2-413 Is Ambiguous
¶13 	Both LPI and the respondents 1 present permissible
grammatical readings of section 34A-2-413(1)(c)(iv). 	The
relevant portion of the statute reads, “To find an employee
permanently totally disabled, the commission shall conclude that
. . . the employee cannot perform other work reasonably
available, taking into consideration the employee’s: 	(a) age;
(b) education; (c) past work experience; (d) medical capacity;

2 We refer to the 2005 version of the statute, which is at
issue in this case. 	The 2006 amendment to the statute makes
slight alterations to the wording of this subsection.
No. 20080663 	6
and (e) residual functional capacity.” 	Utah Code Ann. § 34A-2-
413(1)(c)(iv) 2.
¶14 	LPI relies on the rule of the last antecedent to argue
that the language of section 34A-2-413(1)(c)(iv) permits the
Commission to consider only the five enumerated factors when
determining whether other work is reasonably available and that
the statute prohibits the Commission from considering location,
stability, and wage. 	In contrast, the Commission asserts that
the five enumerated factors do not determine whether other work
is reasonably available but instead relate to the individual
worker’s ability to perform reasonably available work. 	The
Commission argues that the interpretation urged by LPI would lead
to an absurd result because the Commission would not be able to
award benefits even in those cases where the only work available
was outside of the state.
¶15 	The rule of the last antecedent does not mandate that
we limit the Commission’s interpretation of “other work
reasonably available” to the enumerated five factors. 	Under the
rule of the last antecedent, “‘[q]ualifying words and phrases are
generally regarded as applying to the immediately preceding
words, rather than to more remote ones.’” 	Day v. Meek, 1999 UT
28, ¶ 10, 976 P.2d 1202 (quoting Salt Lake City v. Salt Lake
County, 568 P.2d 738, 740 (Utah 1977)). 	But the rule of the last
antecedent does not mandate that qualifying rules and phrases
only apply to the immediately preceding words; rather when given
a choice between the immediately preceding words and more remote
words, we prefer the words closer in proximity to the qualifying
words and phrases. 	This rule does not prevent us from deciding
that qualifying words and phrases apply to “‘several preceding
terms of the same character.’” 	Id. ¶ 11 (quoting Salt Lake City,
568 P.2d at 741). 	Moreover, rules of statutory construction,
such as the rule of the last antecedent, “‘are useful guides, but
poor masters[,] and they should not be regarded as having any
such rigidity as to have the force of law, or distort an
otherwise natural meaning or intent.’” 	Id. ¶ 10 n.4 (quoting
Salt Lake City, 568 P.2d at 741).
¶16 	LPI argues that the rule of the last antecedent
mandates that the five factors modify “other work reasonably
available,” thus limiting the Commission’s authority to consider
any other factors in determining whether other work is reasonably
available. 	However, the rule of the last antecedent actually

3 In addition to finding this argument unpersuasive, we also
note that LPI’s use of legislative history was misleading. 	LPI
points to a floor debate concerning an entirely different portion
of the statute and misconstrues the substance of the debate
concerning the applicable portion of the statute.
7 	No. 20080663
suggests that the five factors modify the entire preceding
phrase, “the employee cannot perform work otherwise reasonably
available,” rather than just the latter portion of the phrase.
Under this interpretation, it is just as likely that the
legislature specified the five factors to be considered in
assessing the employee’s ability to perform reasonably available
work but first intended the Commission to consider whether work
was “reasonably available.” 	We therefore conclude that the rule
of the last antecedent does not shed any light on the
legislature’s intent because the phrase preceding the qualifying
words can be interpreted to have two meanings. 	Further, neither
proposed interpretation leads us to an absurd result that the
legislature could not have intended. 	Because the plain language
of the statute is ambiguous, we turn to the legislative history
to discern the legislative intent.
2. 	The Legislature Intended to Give the Commission Discretion to
Interpret “Other Work Reasonably Available” Under Section
34A-2-413(1)(c)(iv)
¶17 	Because section 34A-2-413(1)(c)(iv) is ambiguous, we
look to legislative history to discern the legislature’s intent.
The relevant legislative history reveals that the legislature did
not intend to confine the meaning of “other work reasonably
available” to the five factors enumerated in the statute. 	Both
the Utah Senate and House floor debates reflect the intent to
allow the Commission to consider the geographic location of
available work, which is not one of the five enumerated factors,
in determining whether other work is reasonably available.
¶18 	LPI argues that, when amending the Workers’
Compensation Act in 1995, the Utah Senate twice rejected an
amendment that would have allowed the Commission to take into
account the locality of the work in determining whether other
work was reasonably available. 	Upon evaluation of the
legislative history, we find this argument unpersuasive. 3 	The
first rejection of a locality of work requirement occurred in a
debate regarding the portions of the bill that allowed employers
to locate part-time work for their PTD employees and that
required the employee to fully cooperate with the employer’s

4 See Utah Code Ann. § 34A-2-413(7)(b) (“An employer or its
insurance carrier may provide or locate for a permanently totally
disabled employee reasonable, medically appropriate, part-time
work in a job earning at least minimum wage . . . .”); see also
id. § 34A-2-413(7)(c) (“An employee shall . . . fully cooperate
in the placement and employment process . . . and . . . accept
the reasonable, medically appropriate, part-time work.”).
No. 20080663 	8
efforts. 4 	Audio Recording: Senate Debate on S.B. 123, 51st Leg.
Gen. Sess. (Feb. 21, 1995). 	Although this amendment failed, it
did not fail because the Senate did not want the Commission to
take into consideration the geographic location of the available
part-time work; rather, it failed because the senators apparently
thought it was unnecessary. 	Id.
¶19 	LPI’s brief also points to a second failed
amendment. 	In debating section 34A-2-413, the senate chose
not to insert “in the local economy” after “other work
reasonably available.” 	Id. 	LPI argues that the Senate’s
refusal to include this language made clear that the
Commission may not consider geographic location when
determining whether other work is reasonably available. 	But
the floor debates make clear that the debating senators
agreed that geographic location considerations are best left
to the reasonable discretion of the Commission and disagreed
only about what statutory language would best fulfill this
purpose. 	Audio Recording: Senate Debate on S.B. 123, 51st
Leg. Gen. Sess. (Feb. 22, 1995). 	Indeed, the House floor
debates confirm that the legislature did not intend to
require the Commission to find that work was reasonably
available if it was outside the geographic area of the
injured worker. 	Audio Recording: House Debate on S.B. 123,
51st Leg. Gen. Sess. (Feb. 28, 1995).
¶20 	In summary, the legislative history reveals that
neither the House nor the Senate intended to confine the
meaning of “other work reasonably available” to the five
factors enumerated in the statute. 	Thus, LPI’s argument
that “other work reasonably available” should be considered
only in light of those five factors is untenable.
3. 	Martinez Does Not Confine “Other Work Reasonably Available”
to the Five Factors Enumerated in Section 34A-2-413(1)(c)(iv)
¶21 	LPI next argues that this court has already confined
the meaning of “other work reasonably available” to the five
statutory factors. 	In Martinez, this court held that whether
other work was reasonably available presented a purely factual

9 	No. 20080663
question to be reviewed under the substantial evidence standard.
2007 UT 42, ¶¶ 32-34. 	Specifically, we stated that the five
enumerated factors are “factual considerations [that] inform what
is reasonable.” 	Id. ¶ 32. 	LPI argues that this language allows
the Commission to consider only the five factors when determining
whether other work is reasonably available. 	We find this
argument unpersuasive. 	The language in Martinez relates only to
the factual nature of determining whether other work is
reasonably available. 	It does not serve to limit the
Commission’s discretion to decide the test for whether other work
is “reasonably available.”
¶22 	In fact, Martinez supports the Commission’s
interpretation. 	In Martinez, we stated that the “elements of
proof turn on intimate facts about the employee’s
circumstances--his unemployment or how his medical capacity or
age affects his ability to do reasonably available work.” 	Id.
¶ 52 (emphasis added). 	This passage suggests that two of the
enumerated statutory factors--age and medical capacity--relate to
an employee’s ability to perform reasonably available work, an
inquiry separate from determining whether other work is
reasonably available.
B. 	The Court of Appeals Correctly Reviewed the Commission’s
Decision Under an Abuse of Discretion Standard
¶23 	Because the legislature did not intend to confine the
meaning of the phrase “other work reasonably available” to the
five statutory factors, we now consider whether the legislature
implicitly granted discretion to the Commission to interpret it.
We conclude that it did.
¶24 	As the court of appeals noted, “‘reasonableness’ is a
broad, general, and subjective concept; its meaning depends on
the context in which it is applied.” 	LPI Servs. v. Labor Comm’n,
2007 UT App 375, ¶ 15, 173 P.3d 858. 	Similarly, “[o]ther work
reasonably available” is a broad and generalized phrase that,
under Morton, bespeaks a legislative intent to delegate its
interpretation to the responsible agency. 	Because the precise
meaning of this phrase cannot be ascertained through traditional
means of statutory interpretation, choosing one permissible
meaning over another reflects a value judgment that the
legislature has entrusted to the discretion of the agency
empowered to administer the statute. 	Moreover, the legislative
history indicates that the legislature intended the Commission to
take into account more than just the five enumerated factors when
determining whether other work was reasonably available. 	Thus,

No. 20080663 	10
the court of appeals correctly reviewed rule 612-1-10.D.1 under
an abuse of discretion standard.
II. 	THE COMMISSION DID NOT ABUSE ITS DISCRETION IN PROMULGATING
UTAH ADMINISTRATIVE CODE RULE 612-1-10.D.1
¶25 	LPI argues that even if the Commission was allowed to
consider more than the five factors enumerated in section 34A-2-
413(1)(c)(iv), it abused its discretion when it promulgated a
rule that takes into account wage when determining whether other
work is reasonably available. 	“An administrative agency’s
authority to promulgate regulations is limited to those
regulations which are consonant with the statutory framework, and
neither contrary to the statute nor beyond its scope.” 	Draughon
v. Dep’t of Fin. Insts., 1999 UT App 42, ¶ 5, 975 P.2d 935. 	When
an agency has discretion to interpret a statutory term, the
agency’s interpretation must be reasonable. 	Morton Int’l, Inc.
v. Auditing Div. of the Utah State Tax Comm’n, 814 P.2d 581, 587
(Utah 1991). 	Thus, the Commission could only promulgate rule
612-1-10.D.1, which required the Commission to consider a
worker’s salary history, if the Rule constitutes a reasonable
interpretation of the governing statute, Utah Code section 34A-2-
413.
¶26 	The Commission’s interpretation of Utah Code section
34A-2-413(1)(c)(iv) was permissible in light of the scope and
statutory framework of the Workers’ Compensation Act. 	As noted
by the court of appeals, “workers’ compensation is intended to
protect injured workers by replacing, to some extent, wages that
have been lost as a result of work-related accidents.” 	LPI
Servs. v. Labor Comm’n, 2007 UT App 375, ¶ 20, 173 P.3d 858. 	The
fundamental purpose of the workers’ compensation system is to
“alleviate hardships upon workers and their families.” 	Baker v.
Indus. Comm’n, 405 P.2d 613, 614 (Utah 1965). 	With these
purposes in mind, the Commission had full authority to promulgate
a rule that takes into account a worker’s prior wage when
determining whether other work is reasonably available to that
worker. 	The Commission was therefore acting within its
discretion when it promulgated rule 610-1-10.D.1.
CONCLUSION
¶27 	We hold that the legislature granted the Commission
discretion to determine what constitutes reasonably available
work when evaluating whether a worker is permanently and totally
disabled. 	Further, the Commission did not abuse its discretion
when it promulgated a rule that takes into account the injured
worker’s past wages in determining whether work is reasonably

11 	No. 20080663
available. 	We therefore affirm the decision of the court of
appeals.
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¶28 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.