2021 UT App 115

THE UTAH COURT OF APPEALS

A1 PIONEER MOVING AND WCF MUTUAL INSURANCE COMPANY,

Petitioners,

v.

LABOR COMMISSION AND VILIAMI PULU,

Respondents.

Opinion

No. 20200534-CA

Filed November 4, 2021

Original Proceeding in this Court

Joshua M. Woodbury, Attorney for Petitioners

Tracy L. Olson and Chad P. Curtis, Attorneys for

Respondent Viliami Pulu

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 A1 Pioneer Moving (A1) terminated Viliami Pulu’s 

temporary total disability (TTD) benefits after he was fired for 

his involvement in a workplace altercation. The Utah Labor 

Commission (Commission) determined that Pulu was entitled to 

benefits. A1 and its insurer, WCF Mutual Insurance Company, 

seek review of the Commission’s decision, and we decline to 

disturb it.

BACKGROUND

¶2 In July 2017, Pulu suffered an injury to his left shoulder 

while employed by A1. A1 subsequently provided Pulu with 

full-time, light-duty work.
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¶3 On November 9, 2017, Pulu was involved in an altercation 

with a coworker (Coworker). He had asked Coworker to retrieve 

a key, but Coworker refused. Pulu responded by telling 

Coworker, “I’ll kick your ass,” to which Coworker responded, 

“[C]ome kick my ass.” Pulu grabbed Coworker “by the neck in a 

one-hand chokehold and with the other hand threatened to 

punch him by raising his fist.” Two other employees broke up 

the altercation.

¶4 A1 had in place “a written workplace health and safety 

rule that prohibit[ed] all threats of (or actual) violence,” the 

violation of which would “result in disciplinary action up to and 

including termination of employment.” A1 terminated Pulu on 

November 12, 2017.

¶5 After Pulu’s termination, A1 did not provide TTD benefits 

to Pulu from November 12, 2017, to December 12, 2017. 

However, A1 did provide TTD benefits from December 13, 2017,

(the date of the surgery on Pulu’s shoulder) to December 21, 

2017. From December 22, 2017, forward, A1 provided Pulu no 

TTD benefits. A1 never applied for a hearing with the 

Commission seeking a reduction or termination of Pulu’s TTD 

benefits.

¶6 Pulu filed an Application for Hearing in March 2019, 

claiming entitlement to TTD benefits from November 12, 2017, to 

December 12, 2017, and from December 22, 2017, to August 9, 

2018. In its disclosures, A1 identified its defense to the 

discontinuation of benefits: “[Pulu] is not entitled to further 

disability compensation pursuant to Utah Code § 34A-2-

410.5(2)(a)[

1

] on the basis that [Pulu’s] employment . . .

 

1. This section of the code states,

In accordance with this section, the commission 

may reduce or terminate an employee’s disability 

(continued...)
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[termination] was reasonable, for cause, and as a result of violent 

and threatening conduct which was also a violation of 

reasonable workplace policies.”

¶7 After the hearing, the administrative law judge (ALJ) 

issued findings of fact and conclusions of law. The ALJ 

determined that Pulu was entitled to TTD benefits for the two 

disputed periods but, reasoning that Pulu’s “conduct and 

termination [was] analogous to an employee who engages in 

willful misconduct,” ordered that his compensation be reduced 

by 15%. See Utah Code Ann. § 34A-2-302(3)(a) (LexisNexis Supp. 

2021) (stating that workers’ compensation benefits “shall be 

reduced 15% when injury is caused by the willful failure of the 

employee” to follow safety rules). The ALJ explained that the 

reduction was justified because Pulu’s misconduct “was 

[relatively] minor with no injuries to either employee, and other 

similar physical altercations and threats had gone undisciplined 

by A1 Pioneer.”

 

(...continued)

compensation for a disability claim for good cause 

shown by the employer including if:

(a) the employer terminates the employee from the 

reemployment and the termination is:

(i) reasonable;

(ii) for cause; and

(iii) as a result, in whole or in part, of:

(A) criminal conduct;

(B) violent conduct; or

(C) a violation of a reasonable, written 

workplace health, safety, licensure, or 

nondiscrimination rule that is applied in a 

manner that is reasonable and 

nondiscriminatory . . . .

Utah Code Ann. § 34A-2-410.5(2) (LexisNexis Supp. 2021).
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¶8 Both Pulu and A1 sought review of the ALJ’s decision. 

While Utah Code section 34A-2-410(2)2 provides that TTD 

benefits must be paid when an employer is unable to make 

available authorized light-duty employment, A1 argued that 

“[c]onversely, where suitable light duty work is made available, 

refusal to do that work by the employee provides a defense to 

compensation benefits.” Accordingly, A1 asserted that Pulu was 

not entitled to any benefits because he “constructively refused 

available light duty work by engaging in threats of violence and 

actual violence against a coworker.” See Stampin’ Up, Inc. v. Labor

Comm'n, 2011 UT App 147, ¶¶ 8–10, 256 P.3d 250

(acknowledging that an “employee’s deliberate, volitional 

conduct with the intent to sever an employment relationship” 

can be construed as a constructive refusal of available light-duty 

work).

¶9 In his motion for review of the decision, Pulu argued that 

the ALJ erred in reducing his compensation by 15% because A1 

failed to comply with Utah Code section 34A-2-410.5’s

procedural requirements and limitations period. See Utah Code 

Ann. § 34A-2-410.5(4)(a) (LexisNexis Supp. 2021) (stating that an 

employer seeking reduction or termination of disability 

compensation after an employee’s good-cause termination or 

incarceration “may file an application for a hearing” with the 

Commission’s Division of Adjudication).

¶10 The Commission rejected A1’s constructive-refusal 

argument because “A1’s position necessarily assign[ed] motives 

to . . . Pulu for which there [was] no evidence” and there was 

 

2. “If a light duty medical release is obtained before the 

employee reaches a fixed state of recovery and no light duty 

employment is available to the employee from the employer, 

temporary disability benefits shall continue to be paid.” Utah 

Code Ann. § 34A-2-410(2) (LexisNexis 2019).
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“nothing in the record to indicate that . . . Pulu engaged in the 

fight with [Coworker] in order to purposely sever his 

employment relationship with A1.” Regarding the 15% 

reduction, the Commission stated, 

Because . . . Pulu’s entitlement to temporary 

disability benefits had been established, the proper 

way for A1 to seek reduction or termination of 

those benefits was to file an application for hearing

as provided for in § 410.5(4). Instead, A1 denied 

paying temporary total disability compensation to 

. . . Pulu and then sought to justify it after the fact

based on his termination for cause. The foregoing

statute and rule[

3

] do not provide for such an 

approach.

Accordingly, the Commission modified the ALJ’s decision by 

determining that Pulu was entitled to benefits for the two time 

periods without any reduction. A1 seeks review of the 

Commission’s order.

ISSUES AND STANDARDS OF REVIEW

¶11 A1 seeks judicial review and presents two issues for our 

consideration. A1 first asks whether the Commission erred in 

interpreting Utah Code section 34A-2-410.5 as requiring A1 to 

follow the procedures set forth in that statute prior to 

 

3. “An employer shall not terminate or reduce an employee’s 

temporary disability compensation pursuant to section 34A-2-

410.5 prior to issuance of a final order by the Commission 

ordering the reduction or termination.” Utah Admin. Code 

R602-4-2.
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terminating Pulu’s TTD benefits.

4 “We review statutory 

interpretations by agencies for correctness, giving no deference 

to the agency’s interpretation.” Cook v. Department of Com., 2015 

UT App 64, ¶ 12, 347 P.3d 5 (quotation simplified).

¶12 A1 next asks us to consider whether the Commission 

erred when it concluded that Pulu did not constructively refuse 

light-duty work as a result of his participation in the physical 

altercation.5 This issue presents a question of fact, and “when the 

Labor Commission’s factual determinations are properly before 

us on review, we review them under the substantial evidence 

 

4. A1 formulates this as two issues: (1) “Did the Labor

Commission err when it rejected the argument that [Pulu] 

forfeited entitlement to TTD compensation for violating [A1’s] 

workplace rule against threatening or engaging in violent 

behavior in the workplace?” and (2) “Did the Labor Commission 

err by concluding that [A1 was] required to file an application 

for hearing under Utah Code § 34A-2-410.5(4)?” A1’s 

formulation represents two facets of the same issue, so we have 

chosen to analyze this as a single issue. See Carter v. State, 2012 

UT 69, ¶ 16 n.7, 289 P.3d 542 (“It is a maxim of appellate review 

that the nature and extent of an opinion rendered by an 

appellate court is largely discretionary with that court.”

(quotation simplified)).

5. A1 formulates this as three issues: (1) “Did the Labor

Commission err in finding that [Pulu’s] actions did not 

constitute a constructive intent to sever his employment 

relationship?” (2) “Did the Labor Commission err in finding that 

[Pulu’s] actions did not constitute a constructive refusal of lightduty work?” and (3) “Did the Labor Commission err in applying 

the standard” found in Stampin’ Up, Inc. v. Labor Commission, 

2011 UT App 147, 256 P.3d 250? For the same reason expressed 

above, see supra note 4, we have consolidated these issues.
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standard of review, examining the whole record to determine 

whether a reasonable mind might accept as adequate the 

evidence supporting the decision.” Quast v. Utah Labor Comm’n, 

2017 UT 40, ¶ 15, 424 P.3d 15 (quotation simplified).6 “A decision 

is supported by substantial evidence if there is a quantum and 

quality of relevant evidence that is adequate to convince a 

reasonable mind to support a conclusion.” Provo City v. Utah 

Labor Comm’n, 2015 UT 32, ¶ 8, 345 P.3d 1242 (quotation 

simplified).

 

6. Pulu argues that A1 did not preserve this second issue because 

the constructive-refusal argument was not raised as an 

affirmative defense before the ALJ but only during the hearing 

before the Commission. We are not persuaded that this issue is 

unpreserved. “In an administrative proceeding, the preservation 

doctrine requires the challenged issue to initially be brought to 

the fact finder’s attention so that there is at least the possibility 

that it could be considered.” Columbia HCA v. Labor Comm’n,

2011 UT App 210, ¶ 6, 258 P.3d 640 (quotation simplified). 

Because “both the ALJ and the Commission have fact-finding 

authority,” A1 was required “to have raised the issues currently 

on appeal to either the ALJ or the reviewing Commission for the 

issues to be properly preserved.” See id. This issue was raised 

before the Commission, so we conclude that this issue was 

properly preserved in this context because the Commission was 

able to adjudicate the issue. See id. (“[The employer] satisfied the 

preservation requirement by raising the issue at the 

administrative level so either the administrative law judge or the 

Commission could have adjudicated the issue.” (quotation 

simplified)); see also Pease v. Industrial Comm’n, 694 P.2d 613, 616 

(Utah 1984) (“Had [the employer] raised the issue, either the 

administrative law judge or the Commission could have 

adjudicated the issue . . . .”).
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ANALYSIS

I. Utah Code Section 34A-2-410.5’s Procedural Requirements

¶13 Subsection (2) of Utah Code section 34A-2-410.5 grants 

the Commission the authority to “reduce or terminate an 

employee’s disability compensation for a disability claim” if an 

“employer terminates the employee from the reemployment[

7

] 

and the termination is . . . reasonable,” “for cause,” and the 

result of “violent conduct” or a “violation of a reasonable, 

written workplace . . . safety . . . rule.” Utah Code Ann. § 34A-2-

410.5(2) (LexisNexis Supp. 2021).

¶14 Subsection (4) of the same statute instructs an employer or 

insurer seeking such a reduction or termination of benefits to 

apply for a hearing with the Commission’s Division of 

Adjudication. See id. § 34A-2-410.5(4)(a) (“An employer or the 

employer’s insurance carrier may file an application for a 

hearing with the Division of Adjudication to request that an 

employee’s disability compensation for a disability claim be 

reduced or terminated under this section.”). The limitations 

period for filing this application for a hearing is one year from 

the date of termination. Id. § 34A-2-410.5(4)(b). If after a hearing 

the Commission determines that the conditions of subsection (2) 

are met, the Commission “may reduce or terminate the disability 

compensation.” See id. § 34A-2-410.5(5)(a).

¶15 Subsection (7) of the statute allows the Commission to 

“make rules . . . related to the procedures for a request for a 

hearing” to reduce or terminate disability benefits. See id. § 34A-

 

7. “‘Reemployment’ means employment that: (i) is after an 

accident or occupational disease that is the basis for a disability 

claim; and (ii) . . . offers to an employee an opportunity for 

earnings . . . .” Utah Code Ann. § 34A-2-410.5(1)(e).
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2-410.5(7). Acting on this authorization, the Commission has put 

in place the following administrative rule: “An employer shall 

not terminate or reduce an employee’s temporary disability 

compensation pursuant to section 34A-2-410.5 prior to issuance 

of a final order by the Commission ordering the reduction or 

termination.” Utah Admin. Code R602-4-2.

¶16 A1 argues that contrary to the plain language of 

subsection (4) and the accompanying administrative rule R602-4-

2, employers are not required to file an application for a hearing 

to seek reduction or termination of benefits under the conditions

described in subsection (2). A1 asserts,

Utah Code authorizes the Labor Commission to 

reduce or terminate benefits under § 34A-2-410.5 

regardless of whether an employer or the 

employer’s insurance carrier files an application for 

hearing. If such an application is filed, a reduction 

or termination would be governed by § 34A-2-

410.5(5). If no application is filed, and good cause is 

shown, a reduction or termination of benefits 

would fall under § 34A-2-410.5(2).

Thus, A1’s assertion is that filing an application is essentially 

discretionary and not mandatory—an employer seeking to 

reduce or terminate benefits could pursue a unilateral path 

under subsection (2) or the application path under subsection 

(4). This reading is unpersuasive for several reasons. First, on a 

practical level, no employer would submit an application to the 

Division of Adjudication under A1’s reading, opting instead for 

a unilateral route absent the Commission’s involvement. A1 

makes no attempt to explain why the legislature would put in 

place a procedure that is merely optional for employers seeking 

relief from paying benefits to a terminated employee. As Pulu

points out in his brief, A1’s interpretation would make the 

statute’s procedures and limitations period applicable only “to 
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those employers/insurers that were foolish enough to seek the 

Commission’s permission and provide the employee with due 

process.”

¶17 Second, A1’s reading renders the majority of the statute 

superfluous. While subsection (2) states that the Commission may 

reduce or terminate disability benefits if an employee is 

terminated for cause involving violent conduct or a violation of

written workplace safety rules, there is no mechanism in the 

statue for involving the Commission without notification by the 

employer. The obvious question under A1’s interpretation of the 

statute involves how the Commission would become involved in 

any sort of reduction of benefits absent some type of application 

by the employer. The answer is that the Commission does not 

take any action to reduce or terminate benefits without an 

employer’s application. And the procedures for submitting an 

application are covered in the following subsections of the 

statute. See Utah Code Ann. § 34A-2-410.5(4)(a) (“An employer 

or the employer’s insurance carrier may file an application for a 

hearing with the Division of Adjudication to request that an 

employee’s disability compensation for a disability claim be 

reduced or terminated under this section.”); id. § 34A-2-

410.5(5)(a) (“The commission may reduce or terminate the 

disability compensation of an employee for a disability claim if 

after a hearing requested under Subsection (4), the commission 

determines that the conditions of Subsection (2) are met.”); id.

§ 34A-2-410.5(7) (“[T]he commission may make rules: (a) 

describing factors to be considered under Subsection (2); and (b) 

related to the procedures for a request for a hearing under this

section.”). Thus, subsection (2) does not stand alone as a path for 

the unilateral reduction or termination of the benefits an

employer is obligated to pay an employee. Rather, the particular 

subsection is an umbrella provision that sets the conditions 

(namely, termination for violent behavior, incarceration, and 

drug/alcohol impairment) under which benefits may be 
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terminated through the process described in subsections (4) 

through (7).

¶18 Moreover, the use of the word “may” in subsection (4)

should not be construed to imply that filing an application with 

the Commission is optional for an employer seeking reduction or 

termination of benefits under the conditions described in 

subsection (2). Rather, the subsection’s use of “may” indicates 

that an employer retains the discretion to determine whether to 

file an application to seek reduction or termination of an 

employee’s benefits. But if an employer does wish to avail itself 

of the process by which the Commission might reduce or 

terminate benefits, based on the relevant provisions, it must file 

an appropriate application and follow the process outlined in the 

statute. Thus, while an employer is under no obligation to seek 

reduction or termination of benefits under the conditions 

described in subsection (2), if that employer wishes to seek 

reduction or termination, filing the application and following the 

procedure are required for the Commission to entertain the 

request. See Utah Admin. Code R602-4-2 (“An employer shall 

not terminate or reduce an employee’s temporary disability 

compensation pursuant to section 34A-2-410.5 prior to issuance 

of a final order by the Commission ordering the reduction or 

termination.”). In other words, the only way to reduce or 

terminate benefits under subsection (2) is by way of an order 

from the Commission, and the only way that such an order gets 

issued is by an employer first filing an appropriate application 

with the Commission.

¶19 Regarding the applicability of section 34A-2-410.5, A1 also 

argues that “[t]his case does not deal with the termination or 

reduction of compensation benefits which were being paid to”

Pulu because “Pulu was not receiving any indemnity 

compensation benefits at the time of his termination that could 

be reduced or terminated.” But this argument is at odds with the 

record. For the month immediately after Pulu was terminated on 
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November 12, Pulu received no pay whatsoever. But he started 

receiving TTD benefits during the week after his surgery on 

December 13. So while it is true that Pulu was not receiving TTD 

benefits at the time he was fired—indeed he could not have been 

receiving them because he had been employed and assigned 

light-duty work by A1—he was receiving TTD benefits when A1 

unilaterally terminated those benefits on December 21. 

Moreover, as the Commission pointed out, Pulu’s right to TTD

benefits vested at the time of his injury. See King v. Industrial

Comm’n, 850 P.2d 1281, 1293 (Utah Ct. App. 1993) (“[T]he Utah 

Workers’ Compensation Act is based on contract principles and 

an employee’s right to benefits arises when [the employee]

suffers a work-related injury.”), abrogated on other grounds by

Murray v. Utah Labor Comm’n, 2013 UT 38, 308 P.3d 461.

¶20 The Commission did not err in concluding that A1 was 

required to file an application pursuant to Utah Code section 

34A-2-410.5(4) before it could reduce or terminate the benefits 

that Pulu was entitled to after his termination.

II. Constructive Refusal of Light-Duty Work

¶21 A1 next argues that “Pulu’s actions leading to his 

termination were not only intentional and deliberate, but also 

demonstrated intent to sever his employment relationship.” 

Thus, A1 asserts that Pulu constructively refused the light-duty 

work that A1 had made available to him and, accordingly, A1 

was under no obligation to provide statutorily mandated 

temporary disability benefits. See Utah Code Ann. § 34A-2-410 

(LexisNexis 2019) (“If a light duty medical release is obtained 

before the employee reaches a fixed state of recovery and no 

light duty employment is available to the employee from the 

employer, temporary disability benefits shall continue to be 

paid.”).
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¶22 Key to the resolution of this issue is the application of this 

court’s decision in Stampin’ Up, Inc. v. Labor Commission, 2011 UT 

App 147, 256 P.3d 250. Pulu argues that Stampin’ Up is directly 

on point and resolves the issue of whether he constructively 

refused light-duty work when he engaged in the altercation. To 

the contrary, A1 asserts that Pulu’s actions are “highly 

distinguishable” from those at issue in Stampin’ Up, making 

Stampin’ Up largely inapplicable here. We agree with Pulu.

¶23 In Stampin’ Up, an employee injured his shoulder, 

received TTD benefits for about a week, and was placed on lightduty work following release from his treating doctor. Id. ¶ 2. He 

continued to perform the light-duty work until he was 

terminated a few months later for sending pornographic images 

to other employees via cell phone and on company email 

accounts. Id. After the employee’s termination, the employer’s 

insurance did not resume paying TTD benefits, asserting that the 

employee, through “bad acts resulting in the termination,” had 

“constructively rejected” the light-duty work the employer had 

made available. Id. (quotation simplified). After a hearing on 

whether the employee was entitled to benefits after his 

termination, the ALJ rejected the employer’s argument, 

concluding that the employee “did not intentionally engage in 

misconduct with the purpose of severing the employment 

relationship; therefore, he was entitled to temporary disability 

benefits.” Id. ¶ 5. The Commission subsequently affirmed the 

ALJ’s decision. Id. ¶ 6.

¶24 On review, this court allowed the decision to stand, 

reasoning that the “Commission’s interpretation of [Utah Code

section 34A-2-410(2)] reasonably draws a line between deliberate

conduct by which an employee intends to sever his or her

employment relationship and conduct that, while perhaps

deliberate, lacks that purpose.” Id. ¶ 11. This court explained that 

just because an employee is terminated for good cause, it does 

not necessarily follow that the employee constructively rejected 
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available light-duty work. See id. ¶ 10. Rather, this court agreed 

with the Commission that constructive refusal of light-duty 

work requires a showing “that the terminated employee acted 

deliberately and with the intent to sever [the employment] 

relationship with [the] employer.” Id. ¶ 9.

¶25 A1 argues that Pulu’s bad conduct differed from that in 

Stampin’ Up in two crucial ways. First, A1 asserts that “the 

severity of the conduct here is much more pronounced than the 

conduct at issue in Stampin’ Up” because it involved “potential 

life-threatening injuries” and “physical harm to a co-worker.” 

Second, A1 points out that Pulu’s conduct was in “direct 

violation” of A1’s written policies. A1 argues that these two 

factors demonstrate that “Pulu’s conduct was carried out with 

the intent to sever the employment relationship.” A1 goes on:

“Some acts are so brutal and outside the scope of acceptable 

workplace conduct that they must be deemed indicative of an 

intent to sever the employment relationship.”

¶26 We disagree with A1 that Pulu’s conduct demonstrated 

an intent to sever his employment. As the Commission pointed 

out in its order modifying the ALJ’s decision, “There is nothing 

in the record to indicate . . . Pulu engaged in the fight with 

[Coworker] in order to purposely sever his employment 

relationship with A1.” Indeed, the record indicates that Pulu had 

no intention of severing his employment relationship. While the 

policy on workplace violence had been in place since 2006, the 

Commission determined that no employee had ever been 

terminated for engaging in workplace violence prior to Pulu; in 

fact, Coworker himself had been involved in a previous physical 

altercation in the workplace with a different coworker and had 

not been fired. Moreover, the record from the hearing indicates 

that the written policy may have never been distributed to A1’s 

employees. Thus, if no employee had been terminated for 

engaging in workplace violence and Pulu appears not to have 

received the written policy about the consequences of workplace 
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violence, it seems unlikely that he intended to sever his 

employment relationship by engaging in an altercation with 

Coworker. Given these circumstances, even if Pulu knew that he 

could get fired for fighting with a coworker, it is doubtful that he 

thought he would get fired for his actions—and it is even more 

implausible that he engaged in the violent conduct with the 

intent to get fired.

¶27 And contrary to A1’s characterization, the altercation does 

not appear to have been severe. Indeed, the ALJ described the 

violent conduct as “[relatively] minor with no injuries to either 

employee.” And Pulu and Coworker both testified that 

comments such as “I’ll kick your ass” were common in the 

workplace and were more akin to playful banter than actual 

threats of violence. Thus, the context of the working relationship 

between Pulu and Coworker does not suggest that their 

interaction on the day of the altercation indicated that Pulu acted 

with the intent to sever his employment relationship. 

¶28 A1’s contention that Pulu constructively refused to accept 

light-duty work does not add up. This case is more similar to 

Stampin’ Up than different. Because Pulu did not “act[] 

deliberately and with the intent to sever” his employment 

relationship, A1’s assertion that Pulu constructively refused 

light-duty work fails. See Stampin’ Up, 2011 UT App 147, ¶ 9.

CONCLUSION

¶29 The Commission did not err when it determined that A1 

was required to apply for a termination of Pulu’s benefits

instead of terminating them unilaterally. And we uphold the 

Commission’s determination that Pulu’s violent behavior did 

not constitute a constructive refusal of available light-duty work. 

Accordingly, we decline to disturb the Commission’s decision.