Justice Nehring sat on this case and voted prior to his retirement 1

on January 31, 2015.

This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 32

IN THE

SUPREME COURT OF THE STATE OF UTAH

PROVO CITY and WORKERS COMPENSATION FUND,

Petitioners,

v.

UTAH LABOR COMMISSION and DUANE SERRANO,

Respondents.

No. 20120724

Filed February 6, 2015

Original Proceeding in this Court

Attorneys:

Hans M. Scheffler, Salt Lake City, for petitioners

Alan L. Hennebold, Jaceson R. Maughan,

Gary E. Atkin, Marsha S. Atkin, Salt Lake City,

for respondents

JUSTICE DURHAM authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

1

JUSTICE PARRISH, and JUSTICE LEE joined.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 While driving a truck within the scope of his employment

with Provo City, Duane Serrano was injured in a car accident. He

later applied for and received permanent total disability benefits.

Provo City and the Workers Compensation Fund (collectively, WCF)

appealed from the Utah Labor Commission’s order awarding

benefits, arguing that (1) Mr. Serrano failed to prove the elements of

a permanent total disability claim; (2) the administrative law judge

abused her discretion because she initially denied Mr. Serrano’s

claim, but then awarded benefits after the labor commission

instructed her to reconsider the evidence; and (3) any award of

benefits should not commence on the date that he was deemed to be

permanently and totally disabled because of the extraordinary delay

in resolving Mr. Serrano’s claim. We conclude that none of these
PROVO CITY v. UTAH LABOR COMMISSION

Opinion of the Court

2

arguments merit reversal, and we affirm the labor commission’s

award of benefits.

BACKGROUND

¶2 Mr. Serrano was employed by Provo City as a facility

service technician. While driving a truck within the scope of his

employment, he was injured in an automobile accident. Mr. Serrano

alleged that the accident aggravated a congenital spine condition,

leading to chronic pain and other disabilities. After the accident,

Mr. Serrano continued to work for Provo City. But more than four

years later, he concluded that his symptoms were no longer

manageable and requested an assignment to a less physically

demanding job. When Provo City replied that a suitable position

was not available, Mr. Serrano quit.

¶3 Mr. Serrano subsequently applied for permanent total

disability compensation under the Workers’ Compensation Act,

alleging that by the time he quit, his condition had deteriorated to

the point that he could no longer work. The administrative law

judge assigned to adjudicate his claim received into evidence over

twenty medical evaluations made by doctors and other experts.

Although the evaluators generally agreed that Mr. Serrano suffered

from continuing impairment caused by the accident, they differed as

to its degree. Some doctors opined that Mr. Serrano was

malingering, and that he could work if certain restrictions were

observed. Another expert concluded that Mr. Serrano suffered from

chronic pain and other ailments aggravated by even basic work

activities and that, as a result, he was permanently and totally

disabled.

¶4 After reviewing this evidence,the administrative law judge

found that Mr. Serrano had not proven all of the required elements

to receive permanent total disability compensation and dismissed

his claim with prejudice. Mr. Serrano filed a motion for review with

the Utah Labor Commission. The labor commission set aside the

administrative law judge’s order because it concluded that the judge

should have appointed a medical panel to review Mr. Serrano’s

claim. The labor commission therefore remanded the case back to the

judge with directions to appoint a medical panel and to issue a new

decision in light of the entire record.

¶5 On remand, the administrative law judge referred the case

to a medical panel for review. After reviewing the medical panel’s

report and the medical evidence, the administrative law judge found

that the preponderance of the evidence showed that Mr. Serrano was

permanently and totally disabled as a result of his accident and
Cite as: 2015 UT 32

Opinion of the Court

3

awarded him permanent disability payments. The WCF filed a

motion for review with the labor commission, asserting that the

judge’s order was in error. The commission affirmed the

administrative law judge’s order. The WCF appealed, and the court

of appeals certified the case to this court.

ANALYSIS

I. PERMANENT TOTAL DISABILITY

¶6 The elements of a permanent total disability claim are laid

out in Utah Code section 34A-2-413(1)(b):

To establish entitlement to permanent total disability

compensation, the employee shall prove by a

preponderance of evidence that:

(i) the employee sustained a significant impairment

or combination of impairments as a result of the

industrial accident or occupational disease . . . ;

(ii) the employee has a permanent, total disability;

and

(iii) the industrial accident or occupational disease

is the direct cause of the employee’s permanent

total disability.

The statute further provides that permanent total disability is

comprised of four elements. In order to “establish that an employee

has a permanent, total disability[,] the employee shall prove” that:

(i) the employee is not gainfully employed;

(ii) the employee has an impairment or

combination of impairments that limit the

employee’s ability to do basic work activities;

(iii) the industrial or occupationally caused

impairment or combination of impairments

prevent the employee from performing the

essential functions of the work activities for which

the employee has been qualified until the time of

the industrial accident or occupational disease that

is the basis for the employee’s permanent total

disability claim; and

(iv) the employee cannot perform other work

reasonably available. 
PROVO CITY v. UTAH LABOR COMMISSION

Opinion of the Court

4

UTAH CODE § 34A-2-413(1)(c). Thus, taken as a whole, the permanent

total disability statute requires workers to prove six elements:

(1) “the employee sustained a significant impairment;” (2) “the

employee is not gainfully employed;” (3) “the employee has an

impairment or combination of impairments that limit the employee’s

ability to do basic work activities;” (4) the impairment or

impairments “prevent the employee from performing the essential

functions of the work activities for which the employee” had been

qualified at the time of the accident; (5) “the employee cannot

perform other work reasonably available;” and (6) “the industrial

accident or occupational disease is thedirect cause of the employee’s

permanent total disability.” Id. § 34A-2-413(1)(b)–(c).

¶7 The WCF argues that the labor commission erred when it

awarded permanent total disability payments because Mr. Serrano

failed to prove any of the six necessary elements for such an award.

In analyzing the WCF’s arguments, we first determine the standard

of review for each element of a permanent total disability claim. We

then apply the appropriate standard ofreview to each of the WCF’s

assertions of error.

A. Standard of Review

¶8 Utah Code section 63G-4-403(4) authorizes appellate courts

to grant relief to a party substantially prejudiced by an error in the

final disposition of a claim adjudicated by an administrative agency.

This statute lists several categories ofremediable errors and implies

a standard of review for some, but not all, of these errors. Murray v.

Utah Labor Comm’n, 2013 UT 38, ¶ 19, 308 P.3d 461. The statute, for

example, authorizes appellate courts to grant relief where an

“agency action is based upon a determination of fact, made or

implied by the agency, that is not supported by substantial evidence

when viewed in light of the whole record before the court.” UTAH

CODE § 63G-4-403(4)(g). Thus, a challenge to an administrative

agency’s finding of fact is reviewed for substantial evidence. Murray,

2013 UT 38, ¶ 19. “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.”

Becker v. Sunset City, 2013 UT 51, ¶ 10, 309 P.3d 223 (internal

quotation marks omitted). “In conducting a substantial evidence

review, we do not reweigh the evidence and independently choose

which inferences we find to be the most reasonable.” Id. ¶ 21

(internal quotation marks omitted). “Instead, we defer to [an

administrative agency’s] findings because when reasonably

conflicting views arise, it is the [agency’s] province to draw
Cite as: 2015 UT 32

Opinion of the Court

5

inferences and resolve these conflicts.” Id. (internal quotation marks

omitted).

¶9 Other remediable errors identified in section 63G-4-403(4),

however, are not accompanied by a standard of review. When

reviewing these types of errors, we apply our traditional standards

of review. Murray, 2013 UT 38, ¶ 21. One example is subsection

(4)(d), which permits appellate courts to grant relief where an

“agency has erroneously . . . applied the law.” UTAH CODE § 63G-4-

403(4). When reviewing this kind of alleged agency error, we

employ one of our established standards of review for mixed

questions of law and fact. Murray, 2013 UT 38, ¶ 24. The level of

deference we afford to an agency’s resolution of mixed questions

varies depending upon the nature of the mixed question under

review. Id. ¶ 36.

¶10 In order to determine the appropriate standard of review

for the WCF’s challenges to the labor commission’s findings on the

six elements of a permanent total disability claim, we must decide

whether each element presents either a pure question of fact or a

mixed question of law and fact. “Factual questions are generally

regarded as entailing the empirical, such as things, events, actions,

or conditions happening, existing, or taking place, as well as the

subjective, such as state of mind.” State v. Pena, 869 P.2d 932, 935

(Utah 1994). A mixed question of law and fact, on the other hand,

involves the application of a legal standard to an established set of

facts. Id. at 936. In other words, the characteristic that distinguishes

a mixed question from a question of fact is “the existence of an

articulable legal issue.” Martinez v. Media-Paymaster Plus, 2007 UT 42,

¶ 27, 164 P.3d 384.

¶11 Because the third, fourth, and fifth elements of a permanent

total disability claim are similar, we examine these elements first to

determine whether they present questions of fact or mixed

questions. We then determine the standard of review for the first,

second, and sixth elements in turn. 

1. The Third, Fourth, and Fifth Elements

¶12 In Martinez, we established the standard of review for the

fourth and fifth elements of a permanent total disability claim. We

held that the fourth element—whether an employee canperform the

essential functions of jobs the employee had been qualified for at the

time of the accident—is a question of fact. Id. ¶ 30. We reasoned that

the questions of what the essential functions of a job are and whether

a particular person is medically able to perform those functions were

matters for experts and did not involve the application of a legal
PROVO CITY v. UTAH LABOR COMMISSION

Opinion of the Court

6

standard. Id. We likewise concluded that the fifth element—whether

an employee can perform other work reasonably available—is a

question of fact because this element does not require the application

of a legal standard. Id. ¶ 32.

¶13 We have not specifically addressed the standard of review

for the third element of a permanent total disability claim—whether

the employee has a limited ability to perform basic work activities.

Due to the similarities between the third element and the fourth and

fifth elements, we conclude that the third element likewise presents

a question of fact. The third, fourth, and fifth elements assess an

employee’s ability to perform work activities: basic work activities,

the work activities of prior employment, or the work activities of

other employment reasonably available. UTAH CODE § 34A-2-

413(1)(c)(ii)–(iv). Because the third element, like the fourth and fifth

elements, depends on empirical evidence and expert testimony

regarding an employee’s ability to perform certain functions, it

likewise present a question of fact. See Martinez, 2007 UT 42,

¶¶ 30–32.

¶14 We therefore review the ultimate findings in the third,

fourth, and fifth elements of a permanent total disability claim for

substantial evidence.

2. The First Element

¶15 Under the first element of a total, permanent disability

claim, an employee must prove he or she “sustained a significant

impairment or combination of impairments as a result of the

industrial accident or occupational disease.” UTAH CODE § 34A-2-

413(1)(b)(i). This element is fundamentally different from the third,

fourth, and fifth elements discussed above because it is not possible

to resolve the question of whether an employee has proven that he

or she has sustained a significant impairment without referring to a

legal standard. The question of whether an employee is physically

able to perform a particular job can be resolved through an

examination of the medical evidence and the opinions of medical

and vocational experts. The application of a legal rule is not

necessary to the resolution of this question. Martinez, 2007 UT 42,

¶¶ 30–32.

¶16 The question of whether a particular impairment is

“significant,” however, requires a court to evaluate the severity of

the impairment and determine whether the level of impairment

exceeds a minimum threshold. Similar to a determination of whether

a search or seizure is “reasonable” in the context of the Fourth

Amendment, a court cannot resolve the question of whether an
Cite as: 2015 UT 32

Opinion of the Court

7

impairment is “significant” without applying a legal definition of

that term to the facts of the case. See Manzanares v. Byington (In re

Adoption of Baby B.), 2012 UT 35, ¶ 44, 308 P.3d 382 (reasonable

search and seizure determinations are mixed questions of law and

fact). This inquiry, therefore, is a mixed question of law and fact.

¶17 A mixedquestionoflaw and fact may implicate one of three

standards ofreview, depending upon the type of challenge made on

appeal. First, we review the lower tribunal’s resolution of factual

disputes deferentially. Jeffs v. Stubbs, 970 P.2d 1234, 1244 (Utah 1998).

For appeals from administrative decisions, we review the

administrative body’s findings of fact under the substantial evidence

standard. Drake v. Indus. Comm’n, 939 P.2d 177, 181 (Utah 1997).

Second, we review the law applied to these facts for correctness.

Baby B., 2012 UT 35, ¶ 47. And third, we review the lower tribunal’s

ultimate conclusion of “whether a given set of facts comes within the

reach of a given rule of law” as a mixed question of law and fact.

Pena, 869 P.2d at 936. This review may be either deferential or de

novo, depending on the nature of the particular mixed question.

Baby B., 2012 UT 35, ¶ 42.

¶18 In this appeal, the WCF challenges the labor commission’s

findings of fact regarding the severity of Mr. Serrano’s impairment.

We accordingly evaluate this argument under the substantial

evidence standard of review.

3. The Second Element

¶19 Under the second element, the labor commission must

determine whether the individual seeking benefits is gainfully

employed. UTAH CODE § 34A-2-413(1)(c)(i). As we note below, the

WCF mounts a legal challenge to the labor commission’s finding on

this element, asserting that the WCF’s concession that Mr. Serrano

was unemployed was no longer valid when the commission

awarded benefits. Because this issue was not preserved, we do not

address it. Infra ¶¶ 25–27. We therefore need not resolve the

standard of review for the second element.

4. The Sixth Element

¶20 Finally, the sixth element requires an employee to prove

that a work accident “is the direct cause of the employee’s

permanent total disability.” UTAH CODE § 34A-2-413(1)(b)(iii). In

cases where there is no preexisting condition contributing to a

disability, the employee need only prove that the work accident is

the medical cause of the disability. Murray, 2013 UT 38, ¶ 45. Under

the medical causation test, the employee must show that an accident
PROVO CITY v. UTAH LABOR COMMISSION

Opinion of the Court

8

is the but-for cause of the disability. Allen v. Indus. Comm’n, 729 P.2d

15, 27 (Utah 1986).

¶21 In cases where a preexisting condition is a contributing

factor to the disability, the employee must prove both medical

causation and legal causation. Murray, 2013 UT 38, ¶¶ 45–46. “To

meet the legal causation requirement, a claimant with a preexisting

condition must show that the employment contributed something

substantial to increase the risk he already faced in everyday life

because of his condition.” Allen, 729 P.2d at 25. “[T]his heightened

showing of legal cause is necessary to distinguish those injuries

which . . . coincidentally occur at work because a preexisting

condition results in symptoms which appear during work hours

without any enhancement from the workplace.” Murray, 2013 UT 38,

¶ 46 (second alteration in original) (internal quotation marks

omitted).

¶22 Here, the WCF challenges the manner in which the labor

commission determined that the car accident was the legal cause of

Mr. Serrano’s disability. Infra ¶ 35. Because the WCF asserts a legal

challenge to the method of determining legal causation, we review

this argument de novo. See Baby B., 2012 UT 35, ¶ 47 (“[A]ppellate

courts have traditionally been seen as having the power and duty to

say what the law is and to ensure that it is uniform throughout the

jurisdiction . . . .” (internal quotation marks omitted)).

B. Substantial Evidence of Permanent Total Disability

1. The First Element: Significant Impairment

¶23 In support of its conclusion that Mr. Serrano suffered from

a significant impairment, the labor commission found that his

injuries prevented him “from lifting, pushing or pulling more than

25 pounds or working at heights.” The commission further noted

that the “medical panel determined Mr. Serrano sustained a 6%

whole-person impairment as a result of the accident.”

¶24 Citing the deferential substantial evidence standard of

review, the WCF asserts that the evidence does not support these

factual findings. An examination of the record reveals, however, that

substantial evidence sustains these findings. The medical panel,

which reviewed all of the relevant medical evidence, determined

that Mr. Serrano could not work on ladders “or unprotected

heights” and that he could not move objects weighing more than 25

pounds. The panel also concluded that Mr. Serrano merited a “6%

Whole Person Impairment” rating as a result of his accident. This

evidence directly supports the findings of fact made by the labor
Cite as: 2015 UT 32

Opinion of the Court

9

commission and is substantial. See Ivory Homes, Ltd. v. Utah State Tax

Comm’n, 2011 UT 54, ¶ 11, 266 P.3d 751 (“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.” (internal quotation marks omitted)).

2. The Second Element: No Gainful Employment

¶25 At the hearing on Mr. Serrano’s claim, the WCF conceded

that Mr. Serrano was not gainfully employed. When the labor

commission reversed the administrative law judge’s initial denial of

permanent total disability payments, it directed the judge to appoint

a medical panel to review the evidence. The labor commission

further instructed the judge that after she received the medical

panel’s report, she was to “issue a new decision that resolves

Mr. Serrano’s various claims in light of the entire record.” The

administrative law judge interpreted the labor commission’s remand

order to mean that the only new evidence to be considered would be

the medical panel’s report. The judge, therefore, instructed the

medical panel to review only the evidence presented at the initial

hearing when preparing its report, and the parties presented no

additional evidence before the judge issued her second order. The

WCF presented no objection to the administrative law judge’s

decision not to consider new evidence on remand.

¶26 The WCF now argues, however, that since no new evidence

was presented after the labor commission remanded the case for

reconsideration, its concession that Mr. Serrano was not gainfully

employed was no longer valid when the administrative law judge

issued its second order. Thus, it asserts that no evidence supports the

conclusion that Mr. Serrano was unemployed at the time the judge

issued the order challenged in this appeal.

¶27 The WCF’s position fails because it was not asserted below.

The WCF couches its argument as a substantial evidence challenge,

but in truth it is arguing that the administrative law judge’s decision

to reconsider the evidence as it existed at the time of the evidentiary

hearing was in error. In essence, the WCF asserts Mr. Serrano should

have been required to prove the elements of his claim as of the date

that the judge issued her second order. But the WCF failed to make

this claim below. By remaining silent and waiting for the appeal to

raise this issue, the WCF unfairly prejudiced Mr. Serrano. If the WCF

had raised this issue below, Mr. Serrano would have been on notice

of the potential need to produce more current evidence of his

employment status. Avoiding this type of unfair prejudice to an

opposing party lies at the heart of our preservation rule. See
PROVO CITY v. UTAH LABOR COMMISSION

Opinion of the Court

10

Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 23, 163 P.3d 615

(preservation rule prevents parties from obtaining a strategic

advantage by raising an issue for the first time on appeal). We

therefore do not address this new issue raised by the WCF.

3. The Third Element: Limited Ability to Perform Basic Work

Activities

¶28 Utah Code section 34A-2-413(1)(c)(ii) requires an employee

seeking permanent disability benefits to prove that the employee has

“an impairment or combination of impairments that limit the

employee’s ability to do basic work activities.” The employee need

not prove a complete inability to perform basic work activities, only

that the employee’s ability to perform these activities is limited. In

defining what constitutes basic work activities, we look to identical

language used in federal social security law, which defines “basic

work activities” as “the abilities and aptitudes necessary to do most

jobs.” 20 C.F.R. § 404.1521(b) (2012). Thus, the disability must limit

an employee’s ability to perform the work activities of a broad

spectrum of jobs available.

¶29 In this case, the labor commission concluded that

Mr. Serrano’s ability to perform basic work activities was limited

because he did not “have a full range of motion with his head and

neck and cannot put stress on his neck such that he does not have a

reasonable degree offlexibility.” The commission’s specific findings

regarding Mr. Serrano’s neck impairments are inadequate to show

that his ability to perform most types of jobs was limited. Of course

a neck injury could limit an employee’s ability to perform physically

demanding jobs, including Mr. Serrano’s previous line of work. But

this element deals with work activities that are so basic that they are

required to perform most jobs, including more sedentary lines of

work. The commission’s findings do not adequately demonstrate

that Mr. Serrano’s disability negatively affects his ability to perform

less physically demanding jobs, such as office work. 

¶30 We nevertheless affirm the labor commission’s finding that

this element was satisfied because it is supported by substantial

evidence presented to the commission. Mr. Serrano testified that

certain basic activities, like walking, could cause his condition to

worsen such that he could do nothing but rest for two or three days.

He stated that by the time he quit his job with Provo City he could

only work for two hours before he would become too nauseated to

continue. He further stated that within an hour of sitting in front of

a computer he would experience nausea and back pain and would

have to lie down. Finally, Mr. Serrano testified that his injury made
Cite as: 2015 UT 32

Opinion of the Court

11

it difficult to sleep at night, which interfered with his ability to arrive

at work on time. Although Mr. Serrano’s testimony is contradicted

in some respects by some of the medical evaluations, it constitutes

substantial evidence on which the commission was entitled to rely

in finding that his injury limited his ability to perform basic work

activities that would be required for most jobs.

4. The Fourth Element: Inability to Perform Former Work

¶31 The labor commission found that Mr. Serrano was qualified

to perform several types of employment. He had eleven years of

experience as a facility service technician fixing and maintaining

public buildings and other facilities. Mr. Serrano also had jobs

maintaining a public pool and as a security guard. Finally, as a

member of the National Guard, he performed physical labor as well

as typing and filing duties.

¶32 Substantial evidence supports the labor commission’s

finding that Mr. Serrano could no longer perform work that he was

previously qualified to perform. His jobs as a facility service

technician and swimming pool maintenance technician required him

to climb ladders, look up for prolonged periods, place his body in

awkward positions in order to fix various systems or machines, and

lift heavy objects. Both expert reports and Mr. Serrano’s testimony

adequately support the conclusion that Mr. Serrano could no longer

safely perform these tasks without experiencing debilitating pain.

Mr. Serrano also testified that his injury prevented him from

performing the duties of a security guard, such as chasing and

apprehending trespassers. Additionally, Mr. Serrano presented

evidence that he could no longer carry out the clerical tasks he had

performed in the National Guard because he could not perform the

repetitive neck movements required for data entry and filing.

Mr. Serrano further testified that after operating a computer in a

seated position for less than an hour, he becomes dizzy and

experiences back pain.

5. The Fifth Element: Inability to Perform Other Work Reasonably

Available

¶33 At the evidentiary hearing, the WCF’s vocational

rehabilitation expert testified that several maintenance supervisor

positions were available and that Mr. Serrano could perform this

type of work. A maintenance supervisor manages other maintenance

technicians and performs office work.

¶34 The WCF argues in this appeal that in light of the

rehabilitation counselor’s testimony, no substantial evidence in the
PROVO CITY v. UTAH LABOR COMMISSION

Opinion of the Court

12

record supports the conclusion that Mr. Serrano could not perform

other work reasonably available. We disagree. Even if Mr. Serrano

could have obtained a position that only required office work, as

noted above, he presented substantial evidence that his injury

prevented him from performing clerical activities. Supra ¶ 32.

6. The Sixth Element: Causation

¶35 The WCF does not raise a substantial evidence challenge to

the labor commission’s finding that the work accident was the

medical cause of Mr. Serrano’s disabilities. Instead, the WCF asserts

the legal argument that because the car accident aggravated a

congenital spinal condition, the accident was not the “direct cause”

of Mr. Serrano’s disabilities. See UTAH CODE § 34A-2-413(1)(b)(iii).

The WCF contends that where a preexisting condition predisposes

an employee to sustain a more severe injury as a result of a work

accident, the employee cannot establish a direct causal link to the

accident.

¶36 The WCF’s argument is clearly wrong. “Just because a

person suffers a preexisting condition, he or she is not disqualified

from obtaining compensation. Our cases make clear that the

aggravation or lighting up of a pre-existing disease by an industrial

accident is compensable . . . .” Allen, 729 P.2d at 25 (alteration in

original) (internal quotation marks omitted). When a condition or

exertion at work aggravates an employee’s preexisting condition, the

employee must establish that the work condition or exertion is the

legal cause of any resulting disability. Id. at 25–26. But theWCF does

not cite our legal causation case law or argue that the car accident

was not the legal cause of Mr. Serrano’s disabilities. Instead, the

WCF argues that a work accident that aggravates a preexisting

condition can never be the direct cause of a disability. We reject this

argument and uphold the labor commission’s finding that

Mr. Serrano proved causation.

7. Conclusion

¶37 In challenging the award of permanent total disability

payments to Mr. Serrano, the WCF argues, in large part, that the

award should be reversed because the evidence supports a

conclusion that Mr. Serrano was not totally disabled. But these

arguments do not satisfy the substantial evidence standard of

review. The fact that the evidence might support a different

conclusion is insufficient grounds for reversing an administrative

agency’s findings of fact. See Becker, 2013 UT 51, ¶¶ 21–22. Because

the WCF failed to show that no substantial evidence supports the
Cite as: 2015 UT 32

Opinion of the Court

13

labor commission’s findings on the elements of a permanent total

disability award, we affirm the decision below. 

II. THE ADMINISTRATIVE LAW JUDGE’S DECISION TO

ARRIVE AT A DIFFERENT RESULT AFTER REMAND

¶38 As noted above, the administrative law judge initially

denied Mr. Serrano’s permanent total disability claim. After the

labor commission reversed and remanded the case, the judge

considered a new medical panel report along with the evidence

presented in the initial proceeding, and came to a different

conclusion. The administrative law judge’s second order awarded

benefits. The WCF argues on appeal that the administrative law

judge abused her discretion by arriving at a different outcome after

the remand.

¶39 We hold that the administrative law judge did not err. The

medical panel’s report constituted new evidence that could

reasonably lead a different outcome. Moreover, the WCF cites no

statute, rule, or legal principle that would prevent an administrative

law judge from arriving at a different outcome when the judge is

directed to reweigh the evidence on remand. Absent any legal

argument as to why the administrative law judge could not change

her mind after the remand, we are unable to evaluate the WCF’s

bald assertion that the judge abused her discretion. See UTAH R.APP.

P. 24(a)(9) (“The argument shall contain the contentions and reasons

of the appellant with respect to the issues presented, . . . with

citations to the authorities, statutes, and parts of the record relied

on.”)

III. DELAY IN ISSUING THE ADMINISTRATIVE DECISION

¶40 Mr. Serrano filed his claim for benefits in 2006. The

administrative law judge denied his permanent total disability claim

in 2007, and he filed a motion for review with the labor commission.

The labor commission did not rule on the motion for review until

2010, when it remanded the case back to the administrative law

judge for further proceedings. The administrative law judge then

issued a second order awarding benefits in 2012 and the labor

commission affirmed the award later that year. The WCF appealed

to the court of appeals and after the case was fully briefed and oral

argument was held in that court, the court of appeals certified the

case to this court for further briefing and oral argument before this

court.

¶41 The WCF complains about the six-year delay between the

filing of Mr. Serrano’s claim and the labor commission’s final
PROVO CITY v. UTAH LABOR COMMISSION

Opinion of the Court

14

decision affirming the award of benefits. The WCF asserts that it

would be prejudiced if it were required to make a lump-sum award

for the years in which Mr. Serrano was entitled to benefits but did

not receive them because of the delay in adjudicating his claim. The

WCF somewhat sheepishly suggests: “Perhaps this Court can apply

the equitable principles recently recognized [in Employers’

Reinsurance Fund v. Labor Commission, 2012 UT 76, ¶¶ 30–37, 289 P.3d

572] to modify the onset date of benefits.”

¶42 We reject this proposal because our holding in Employers’

Reinsurance Fund does not apply here. In that case, an employee

waited thirteen years after he became disabled to file a claim for

benefits. Id. ¶¶ 34–36. We held that because the employee’s

unreasonable delay prejudiced the Employers’ Reinsurance Fund,

the employee’s benefits would be calculated from the date he first

applied for them. Id. ¶ 36. In this case, the delayed award of benefits

is not attributable to Mr. Serrano, but rather to the administrative

system set up to adjudicate his claim. Thus, unlike the claimant in

Employers’ Reinsurance Fund, there is no reason why Mr. Serrano

should shoulder the burden for any prejudice caused by the delay.

CONCLUSION

¶43 We affirm the labor commission’s award of permanent total

disability benefits to Mr. Serrano.

____________